Sometimes, a blog just has to be written. For those of us of a certain age, Sterling Hayden's speech as Jack D. Ripper in Dr. Strangelove concerning the Communist plot to fluoridate our water is iconic. Well, it turns out that the old adage may be true. Just because it’s a conspiracy theory doesn’t mean that they’re not out to get us.
Or, in other words, based on the recent decision in Food and Water Watch v. US EPA, it appears that fluoridated water indeed poses an unreasonable risk to human health. Specifically, Judge Edward Chen, an Obama appointee, found, in a careful 80-page opinion, 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.
Judge Chen did make clear that his ruling is limited in its findings and its import:
[T]his 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.
It is true that, under TSCA, EPA has a lot of options when a finding of unreasonable risk is made, but it won’t be easy to put a warning label on tap water.
The most interesting aspect of the case is that judicial review of EPA decisions on citizen petitions under TSCA is not under the APA. TSCA instead states explicitly that EPA’s determination gets no deference; judicial review is de novo. I don’t remember if the Congressional debate over the 2016 amendments to TSCA was infected by the growing concern about Chevron. However, it is interesting that, in one of the most significant environmental bills enacted by Congress in this century, Congress reigned in EPA discretion, and it did so not in the area of legal interpretation but on the questions going to the heart of agency expertise.
I’m not a supporter of the approach Congress took in the TSCA amendments. I would rather that courts defer to agency expertise than that they perform their own “expert” review of the underlying science. However, I should note that deference has always been in the eye of the beholder and, based on Judge Chen’s opinion, I could imagine a court ruling against EPA on the question of the risks posed by fluoridation, even if review were under the APA’s deferential standard of review. It turns out that the nuts may have been right about fluoride all along!
Either way, Dr. Strangelove retains its power, and Sterling Hayden remains iconic.
See video here.
