The EPA claims a federal judge “commandeered” a case when he determined the agency needed to investigate safe fluoride levels in drinking water.
By Andrew J. Nelson, Courthouse News Service
The federal government maintained before a Ninth Circuit panel Tuesday that a federal judge overstepped and made his own arguments while ruling in favor of an nonprofit challenging the Environmental Protection Agency’s standard for fluoridation levels in drinking water.
Citing instructions of a lower court’s September 2024 order, U.S. Deputy Attorney General Robert N. Stander described it as “a very dramatic departure” from the party-presentation principle, which requires courts to decide matters based only on arguments made by parties in cases.
“These are the words of a judge that has commandeered the case, that has decided that it knows best about what evidence should be presented. The plaintiffs under our adversarial system, are responsible for advancing the facts and argument,” Stander said, speaking for the Environmental Protection Agency on Tuesday in front of the three-judge panel in San Francisco.
But environmental nonprofit Food & Water Watch — whom the lower court sided with and ruled that the current level of fluoride in water considered “optimal” by the EPA is too high, and that it “poses an unreasonable risk of reduced IQ in children”— denied this.
“This is not a case, Your Honors, where the trial judge was doing his own research on the side and finding studies that neither party presented,” plaintiff attorney Michael Connett of the Los Angeles firm Siri & Glimstad said. “This was a case where the trial judge heard argument and testimony at trial about important, new studies on the horizon which could shed important light on the very issue the judge was tasked with deciding.”
Food & Water Watch — joined by other opponents of water fluoridation, like Moms Against Fluoridation and several individuals — sued the EPA in 2017, challenging the agency’s rejection of their petition to consider whether drinking fluoride is dangerous to human health, eventually leading to Chen ordering the EPA initiate rulemaking on the chemical.
“It should be noted that this finding does not conclude with certainty that fluoridated water is injurious to public health,” U.S. District Judge Edward Chen said in his 80-page ruling, but, “there is an unreasonable risk of such injury, a risk sufficient to require the EPA to engage with a regulatory response.”
On appeal, Stander said the Barack Obama appointee’s decision meant that the case would be decided not merely on evidence presented in the nonprofit’s petition, but on evidence submitted later and scientific studies peer reviewed afterward.
“It renders the petition a meaningless formality,” he said. “It undercuts the requirement that the petition set forth the facts that establish a need to regulate and it leads to the nonsensical situation where the plaintiffs present one set of studies to EPA, and then a very different set of studies in the district court.”
The nonprofit argued that if the EPA had their way, experts would not be able to “rely on groundbreaking new studies” even when central to the case, and said the lower court did not raise new legal issues and was using its authority to manage the proceedings.
A key part of Stander’s argument was that both parties had wanted the judge to resolve the case with the evidence at hand. Connett did not dispute this, but maintained the court had the right to proceed as it did.
“A district court has broad and inherent power to manage the course of proceedings and a district court need not resolve a dispute in a way the parties proposed or preferred,” Connett said.
Chief U.S. District Court Judge Brian Morris, a Barack Obama appointee sitting by designation from the District of Montana, interrupted Connett during his remarks.
“Counsel, I typically sit at the district court, and I can’t recall an instance where I told the parties at the end of the trial, ‘well, I’m not satisfied that was enough information. Why don’t we go out and develop some more, and I’ll give you a decision later.’ What’s the authority the court used to hold this case in abeyance?”
“The inherent power of the district court to control and manage the proceedings before it,” Connett said.
Morris asked Connett if Stander had accurately described what had happened.
“We certainly expressed concerns. There is no question that plaintiffs wanted a quick decision just like EPA did,” Connett said. “But we never formally objected to it.”
Alongside Morris, the panel consisted of Senior U.S. Circuit Judges Sidney R. Thomas and Ronald M Gould, both Bill Clinton appointees. The panel did not indicate when would announce its decision.
Cities in the United States began adding fluoride to their water supplies in 1950s, after research showed it would prevent cavities and pose no other health risks. By 1960, the policy was widespread, if not entirely without controversy.
Conspiracy theorists have blamed water fluoridation for everything from AIDS to cancer to communism — a view parodied in the 1964 film, “Dr. Strangelove,” in which a character calls fluoridation, “the most monstrously conceived and dangerous communist plot we have ever had to face.” More recently, Health and Human Services Secretary Robert F. Kennedy Jr. has described fluoride as “an industrial waste.”
According to Food & Water Watch, three-quarters of the population — more than 200 million Americans — drink fluoridated water. The Centers for Disease Control has named the fluoridation of drinking water one of the top 10 public health achievements of the 20th century.
