Date: Jun 18, 2020
Keller and Heckman Partner Herb Estreicher, Ph.D., was quoted in the Inside EPA article, “Judge Punts in Landmark TSCA Suit but Gives Few Clues on Any Ruling.” The article discusses a recent decision by Judge Edward Chen, the federal judge overseeing the landmark trial on whether fluoride is eligible for regulation under the Toxic Substances Control Act (TSCA), in which he may have punted any decision until after the Environmental Protection Agency (EPA) reviews a new petition from the plaintiffs.
Judge Chen proposed that he withhold his judgement entirely until the plaintiffs can file a new petition with EPA that reflects the new scientific evidence that has been developed in the four years since the original petition was filed. His decision -- and his failure to signal how he might eventually rule -- continues the legal and regulatory uncertainty that the litigation may have driven.
The case is unique, as it is the first-ever legal challenge to EPA’s dismissal of a citizen’s petition under the TSCA section 21. It puts Judge Chen in the position of deciding whether fluoride poses an “unreasonable risk” and should be regulated under TSCA, a decision usually made by the EPA administrator. He asked for the plaintiff and defense to work together on the issue of a new petition for EPA.
Dr. Estreicher noted that it is not optimal for a federal judge with little scientific background to be overseeing such a technical case, which may explain Chen’s decision to recommend the plaintiffs file a new petition.
“I don't feel that these are the kinds of issues that should be resolved by judges,” he said. “I think they should be resolved by expert agencies like EPA. However, that's not what Congress has decided.” He added that having a generalist judge weigh the issue is “probably just a recipe for disaster.”
To read the full article, please click here.