Source: Children’s Health Defense

The legal battle over fluoridated drinking water escalated today when attorneys for Food & Water Watch (FWW), Fluoride Action Network (FAN) and other plaintiffs filed a brief accusing the U.S. Environmental Protection Agency (EPA) of trying “to protect the EPA from the public” rather than protecting public health.

The outcome of the agency’s appeal will shape federal oversight of community water fluoridation and also determine how much power citizens have to force regulatory action when new scientific evidence emerges.

At the center of the dispute is the citizen petition process, which allows citizens to file lawsuits demanding restrictions on toxic chemicals that aren’t effectively regulated. Congress created the process under the Toxic Substances Control Act (TSCA).

In July, when the EPA appealed a 2024 federal court ruling that ordered it to take action to address the risk posed by water fluoridation, the agency didn’t challenge the court’s finding that current fluoridation levels pose an “unreasonable risk” of neurodevelopmental harm to children.

Instead, the EPA argued that the court improperly relied on research — including a multi-year study by the federal government’s National Toxicology Program (NTP) — published after the plaintiffs filed their 2016 TSCA petition. The agency claimed that the newer evidence should not have been admissible and that the EPA, therefore, shouldn’t be compelled to act, because it didn’t have that data when the petition was first filed.

The EPA also challenged the plaintiffs’ legal standing and the court’s authority to manage the evidentiary record — positions the plaintiffs argue are both legally unsupported and factually inaccurate. The plaintiffs wrote:

“If EPA had its way, many threatened citizens would be unable to sue; experts would be unable to rely on groundbreaking new studies, even when EPA concedes they are ‘indisputably central’ to the case; and chastened judges would be hesitant to ensure that highly consequential decisions take account of what both parties consider to be the strongest science.”

Attorney Michael Connett from the Siri & Glimstad law firm, who represents the plaintiffs, posted the plaintiffs’ response to the EPA on X. He said the EPA still has the option to withdraw the appeal.

“It is not too late for @EPALeeZeldin and @AGPamBondi to withdraw their appeal and to comply with the court’s order to protect the public from the health risks posed by fluoridation,” he wrote. “Doing so would align EPA with @SecKennedy and help this administration deliver on a key part of the MAHA platform.”

Congress created TSCA to ‘protect the public,’ not to ‘protect the EPA from the public’

Under Section 21 of TSCA, any person may petition the EPA to compel rulemaking for chemicals the agency has failed to adequately regulate — which FWW, FAN and other authors of the 2016 petition did.

When the EPA denied their petition, the FWW, FAN and others sued. The fluoride lawsuit — the first citizen-petition case to be heard in federal court — dragged out for seven years.

TSCA explicitly allows petitioners to take their case to court in a “de novo proceeding,” meaning the judge reviews the issue from scratch without deferring to the agency or its prior decision.

In its appeal brief, the EPA argued that the law limits the court to the existing administrative record. The agency claimed that U.S. District Judge Edward Chen violated the rules by allowing new and emerging evidence — published after the 2016 petition — on fluoride’s neurodevelopmental risks.

Plaintiffs countered that the U.S. Senate report accompanying the TSCA provision made clear that simply reviewing the administrative record would be insufficient because “there would be no record upon which the review could be based.”

In other words, they argued that the administrative record wouldn’t contain the very evidence showing why new rulemaking is needed.

The Senate report states that a de novo procedure “is essential” because it allows the court to build the evidentiary record that the administrative process lacks. “De novo proceedings were thus expressly intended as evidence-gathering processes,” according to the brief.

According to the report, once the court gathers the evidence, it may order the EPA to begin regulatory action if the petitioner proves such action is warranted — which is what Chen did in his ruling last year.

“Under this framework, it makes little sense to freeze the record in time to what EPA considered [in its initial response to the petition],” the plaintiffs argued. “This is especially so given that TSCA’s ‘overarching purpose’ is ‘to protect the public,’ not to protect EPA from the public.”

The brief also noted that the EPA relied on new studies during the trial when it benefited the agency, adding experts and introducing late-breaking research — including the NTP monograph, a Health Canada document released just weeks before trial, and multiple documents published mid-trial — when doing so suited the agency’s own litigation strategy.

EPA accused of making ‘eleventh-hour gambit’ in its appeal

In today’s brief, plaintiffs argued that the EPA improperly introduced new factual claims in its appeal to challenge the standing of Jessica Trader, a Kansas mother and FWW member whose testimony was central to the U.S. District Court for the Northern District of California’s ruling.

The EPA argued that “background fluoride levels” in Trader’s tap water would have posed a risk to her unborn baby, regardless of added fluoride — claims the plaintiffs describe as “newly proffered ‘facts’” that never appeared at trial.

According to today’s brief, the EPA never raised these claims, and even acknowledged during litigation that pregnant women and infants in fluoridated areas are “susceptible populations” with standing to sue. The District Court easily found that Trader suffered economic harm by buying filtration systems and bottled water to reduce fluoride exposure for herself and her child.

The EPA is now making what plaintiffs called an “eleventh-hour gambit,” asking the appellate court to reverse the District Court and speculate about how Trader might have answered questions the agency never asked. They said this tactic is “highly prejudicial” and violates precedent cautioning appellate courts against considering new facts.

Even if the court considered the EPA’s new theory, the plaintiffs maintain that Trader and FWW still have standing because Trader never claimed she eliminated every possible fluoride source — only that she took steps to avoid fluoride added to her community’s water supply.

The brief also notes that standing does not rest solely on Trader, as other plaintiffs — including Brenda Staudenmaier and Kristen Lavelle — also spend significant resources to avoid fluoridated water.

EPA previously urged court to ‘let the science advance,’ but is doing opposite

The EPA also argued that Chen violated the “party presentation principle” — which holds that the parties, not the court, define the content and scope of the issues in a case — when he put the trial on hold in 2020.

Chen halted proceedings because he believed he needed more evidence to rule effectively and decided to wait for the NTP monograph on fluoride and neurotoxicity, a report both sides had identified as central to the case.

The plaintiffs counter that the principle isn’t applicable in this case, because it restricts a court’s ability to raise new legal issues — not its authority to determine which evidence is necessary. Managing the evidentiary record falls squarely within a judge’s broad authority to control the proceedings, they argue.

They also noted that the EPA never raised this objection in District Court and therefore waived its right to do so on appeal.

They added that many of the reports the EPA now objects to were admitted either with the agency’s full support or without any objection.

In its closing arguments during the first phase of the trial, the EPA urged the court to “let the science advance” and highlighted that the NTP was finalizing its systematic review. Now it is accusing the court of erring in using that very evidence to decide the case.

More than 200 million Americans drink fluoridated water. As the case moves forward, communities nationwide are reassessing whether to continue fluoridating their water based on evidence raised in the lawsuit.

Since the District Court ruling, more than 60 U.S. towns and counties and two states have voted to end fluoridation.

Oral arguments in the appeal are expected early next year. If the 9th Circuit U.S. Court of Appeals upholds the ruling, the EPA will have to begin a TSCA rulemaking process that would likely lower allowable fluoride levels in drinking water.

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• Trump’s DOJ Says EPA Will Appeal Landmark Fluoride Ruling
• EPA to Appeal Federal Court’s Landmark Ruling on Fluoride
• EPA to Review Health Risks of Water Fluoridation as RFK Jr. Says He’ll Tell CDC to Stop Recommending It
• CDC Stands by Water Fluoridation After Report Linking Fluoride to Lower IQs in Kids Finally Published