U.S. DOJ requests second chance for EPA

WIS. – Preparation and timing can make or break a court case, experts say. The plaintiffs had both in the Food and Water Watch v. U.S. Environmental Protection Agency case about fluoridation, but the EPA wants another chance.

Whether the Notice of Appeal attorneys for the U.S. EPA filed Jan. 17 was filed within the required 60-day window could be a point of contention.

The reason U.S. Department of Justice attorneys representing the EPA filed an appeal wasn’t clear, as Matthew Nies, a spokesman for the Department of Justice, said in response to a reporter’s questions, “We don’t have a comment.”

The EPA is aware of fluoride’s “potential negative impacts” to bones and teeth in young children, according to an EPA statement provided to the Peshtigo Times.

The statement didn’t mention the research findings linking fluoride consumption with lower IQ scores and brain damage, as cited in U.S. District Judge Edward Chen’s Sept. 24, 2024 ruling against the EPA.

The court concluded the plaintiffs, including Peshtigo residents Brenda, Ko and Hayden Staudenmaier, had proven, “by a preponderance of the evidence, water fluoridation at 0.7 mg per liter – the prescribed optimal level of fluoridation in the United States – presents an unreasonable risk of injury to health or the environment,” including to a susceptible subpopulation of children.

The court also ordered the EPA administrator to initiate rulemaking according to the Toxic Substance Control Act.

The EPA had 60 days to file an appeal, according to the plaintiffs. The Department of Justice’s appeal was filed Jan. 17, within 60 days of Nov. 20 but more than 60 days after the Sept. 24 ruling when Judge Chen directed the Clerk of the Court to enter judgment in Plaintiffs’ favor.

“If this case returns to the courtroom, it will delay addressing the permanent harm caused to children by the neurotoxicity of fluoride chemicals for several more years. Kids will continue to have a few IQ points shaved off and ADHD rates will continue to climb,” Brenda Staudenmaier said.

The EPA statement didn’t address whether 0.7 mg/L was an optimal level for fluoridated water, as the U.S. Department of Public Health has indicated it is.

Instead, the EPA said, “EPA’s maximum contaminant level goal (MCLG) and enforceable maximum contaminant level (MCL) for fluoride are 4.0 mg/L. EPA’s secondary maximum contaminant level (a non-enforceable standard) is set at 2.0 mg/L. These levels were developed to prevent potential negative impacts of too much fluoride to bones and teeth in young children. EPA’s standards apply to all drinking water systems and limit the amount of fluoride present in drinking water from either added fluoride or naturally occurring sources.”

The EPA’s appeal was filed just days after the American Dental Association, with the support of other dental organizations, sent a letter contesting the fluoride research Judge Chen relied on in his ruling. The court “placed a federal judge’s misunderstanding and misapplication of science over the risk assessment expertise of federal regulators and reputable scientific organizations,” the ADA said.

Staudenmaier said the ADA’s letter was designed to preserve the association’s reputation. “Science is not on the ADA’s side. It seems that all the ADA has left are lies and bullying tactics, such as rallying dental groups to pressure the EPA into appealing. They lack credible, high-quality research to support fluoride’s safety for the brain,” she said.

“Worse, some of the claims from ADA-affiliated dentists are downright absurd. Many still believe that swallowing fluoride during pregnancy benefits the developing teeth of the fetus—a notion rooted in outdated 1940s thinking. We now know that fluoride works topically, after teeth erupt in the mouth, not while they are developing below the gums,” Staudenmaier said.

Staudenmaier said she repeatedly has provided oral and written statements to the Biden Administration’s White House Environmental Justice Advisory Council and the National Environmental Justice Advisory Council emphasizing fluoride is a social justice issue.

She cited a recent U.S. study that concluded, “Non-Hispanic Black youth in the U.S. may have greater fluoride exposure than youth of other races and ethnicities, particularly from tap water.”

The EPA statement, provided to the Peshtigo Times by Jeff Landis in the EPA Office of Media Relations and Risk Communications, said, “While the (court’s) decision finds a risk sufficient to trigger regulation under the Toxic Substances Control Act, it is important to note that the court does not conclude with certainty that fluoridated water is injurious to public health.”

But the EPA statement neglected to include Judge Chen’s assertion, “the Court finds there is an unreasonable risk of such injury, a risk sufficient to require the EPA to engage with a regulatory response.”