Will the EPA Limit Water Fluoridation?
In the closing days of the Presidential campaign, Robert F. Kennedy Jr. announced that “the Trump White House will advise all U.S. water systems to remove fluoride from public water.” Multiple news reports pounced on the statement as another example of RFK Jr’s fringe and potentially dangerous views about public health.
Often unmentioned in these news stories is that the next Secretary of Health and Human Services’ views on fluoridation will likely matter less than the views of the next Environmental Protection Agency Administrator–and the views of both could matter less than those of federal judges.
This past September, in Food & Water Watch v. EPA, a federal district court judge in the Northern District of California concluded that recommended levels of fluoride in drinking water present an “unreasonable risk” to public health under the Toxic Substances Control Act (TSCA), and ordered the EPA to address this concern. And while it’s Donald Trump who has nominated a fluoridation skeptic to HHS, this judge (Edward Chen) was appointed by President Obama.
Judge Chen’s opinion begins:
In 2016, Congress amended the Toxic Substances Control Act (“TSCA”), empowering United States citizens to petition the Environmental Protection Agency (“EPA”) to consider whether a chemical presents an unreasonable risk of injury to health. See Pub. L. No. 114-182, 114th Congress (Frank R. Lautenberg Chemical Safety for the 21st Century Act) (the “Act”). The Act addresses the modern day reality that “human beings and the environment are being exposed each year to a large number of chemical substances and mixtures,” 15 U.S.C. § 2601(a)(1), and that, “among the many chemical substances and mixtures which are constantly being developed and produced, there are some whose manufacture, processing, distribution in commerce, use, or disposal may present an unreasonable risk of injury to health or the environment,” id. § 2601(a)(2).
To this end, under TSCA, as amended by the Act (“Amended TSCA”), a citizen is entitled to judicial review of the EPA’s denial of the citizen’s petition, wherein a court considers whether the chemical poses an unreasonable risk de novo, i.e., without deference to the EPA’s decision. See id. § 2620(b)(4)(B). Amended TSCA sets up a system of judicial review that is remarkably different from the usual scope of judicial review of administrative actions under the Administrative Procedure Act, which confers substantial deference to administrative agencies. See id. Under Amended TSCA, the Court owes no deference to the EPA in assessing the risk posed by chemical substances. See id. If the Court finds anew that the chemical at issue presents an unreasonable risk, it then orders the EPA to engage in rulemaking regarding the chemical. See id. The EPA is afforded in the first instance the authority to respond; regulatory actions can range from requiring a mere warning label to banning the chemical. See id. § 2605(a)(1)-(7). The EPA, in short, has options. See id.
The issue before this Court is whether the Plaintiffs have established by a preponderance of the evidence that the fluoridation of drinking water at levels typical in the United States poses an unreasonable risk of injury to health of the public within the meaning of Amended TSCA. For the reasons set forth below, the Court so finds. Specifically, the Court finds that fluoridation of water at 0.7 milligrams per liter (“mg/L”) – the level presently considered “optimal” in the United States – poses an unreasonable risk of reduced IQ in children. It should be noted that this finding does not conclude with certainty that fluoridated water is injurious to public health; rather, as required by the Amended TSCA, the Court finds there is an unreasonable risk of such injury, a risk sufficient to require the EPA to engage with a regulatory response. This order does not dictate precisely what that response must be. Amended TSCA leaves that decision in the first instance to the EPA. One thing the EPA cannot do, however, in the face of this Court’s finding, is to ignore that risk.
The court’s judgment was delayed, the EPA reportedly has until Janu
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