Ninth Circuit revokes 'commandeering' judge's fluoride ruling

(CN) — A Ninth Circuit panel on Thursday rebuked a federal court for “commandeering” a lawsuit brought against the Environmental Protection Agency over its purported failure to prohibit potentially risky concentrations of fluoride in drinking water.

In an unsigned opinion, the three-judge panel vacated Senior U.S. District Judge Edward Chen’s ruling and sent the case back to him in San Francisco with instructions to rule on the dispute based on the evidence presented at a first bench trial rather than on additional evidence that the judge decided to include on his own accord to conduct a second bench trial.

Chen, a Barack Obama appointee, had agreed with a plaintiff consortium of organizations and individuals concerned that the addition of fluoride to drinking water at a concentration of 0.7 mg/L presents an unreasonable risk to human health. He had ordered the EPA to rely on guidance of the Toxic Substances Control Act to determine the safety of artificially fluoridated drinking water.

“The district court abused its discretion when it refused to rule on the first trial record, despite the parties’ assertions that it should, and when it held the case in abeyance to wait for the completion of an additional study to which the parties had already stipulated not to present at trial,” the panel said.

As such, the panel agreed with the EPA that the judge violated the so-called party presentation principle, which holds that the litigants, rather than the judge, are in charge of framing their dispute and developing the evidentiary record.

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,” 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, the federal government argued Chen’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," Deputy U.S. Attorney General Robert Stander told the panel at a March 3 hearing. “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.

Michael Connett, an attorney for Food & Water Watch and the other plaintiffs, noted the panel’s opinion didn’t address the factual merits of the lower court’s determination that fluoridation poses an unreasonable risk to human health.

“The panel’s threadbare opinion vacated the district court’s decision based on an expansive and unprecedented application of the party presentation principle,” Connett said in an email. “Based on this expansive application of this doctrine, the panel ordered the court to travel back in time to August 2020 and render its decision based on the (now stale) factual record as it existed at that time.”

The U.S. Justice Department, which represents the EPA in the lawsuit, declined to comment.

The appellate panel included Senior U.S. Circuit Judge Sidney Thomas, a Bill Clinton appointee, U.S. Circuit Judge Ronald Gould, also a Clinton appointee, and Chief U.S. District Judge Brian Morris, a Barack Obama appointee at the U.S. District Court of Montana who sat on the panel by designation.

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