BIG NEWS! The Court ruled in favor of our motion, and the lawsuit against the Environmental Protection Agency (EPA) in federal court is moving forward, bringing us another step closer to a final ruling.
If you missed Wednesday’s exciting hearing in federal court, you will be able to watch it. The court recorded the proceedings and will release it to the public. I was waiting to include a link to the recording in this bulletin, but it hasn’t been released yet. When it is, the Fluoride Action Network (FAN) will immediately share it with you in an email and on social media. Stay tuned! In the meantime, here’s what happened.
At the end of the initial trial in June of 2020, the Court put a stay/abeyance on the proceedings, wanting to wait for the National Toxicology Program (NTP) to finalize its review of the science on fluoride and human neurotoxicity. At the time, lawyers for the US Environmental Protection Agency (EPA) told the Court that the review would be forthcoming, and based on the NTP’s typical review process, the delay on our trial ought to have been short-lived. However, in unprecedented fashion, the NTP has subjected their fluoride report to at least three separate peer-reviews, with a fourth currently ongoing. This is in contrast to previous NTP Monographs on other chemicals, where there has only been one public peer-review culminating in a public vote by a panel of scientists. More than two-years after the Court was assured a final document, the NTP has yet to publish one.
FAN and our attorneys felt that we had waited patiently for long enough. Prior to Wednesday’s hearing, our attorneys filed a motion asking the Court to take the case out of abeyance and to hold a second trial where our experts can comment on the latest scientific studies, including existing versions of the NTP review. If the Court wasn’t inclined to hold a second phase of the trial, we also expressed support for a ruling based on the existing record rather than continue waiting for the NTP.
The EPA objected to ending the stay, preferring the Court to either wait for the final NTP review or make a ruling based on the existing court record. The EPA were not in favor of reopening the trial to more expert testimony, new evidence, or any version of the NTP report but the “final” version, if one is ever published. That timeline would have likely delayed the trial into late 2023 or beyond.
On Wednesday, the Court ruled in favor of our motion to lift the stay on the proceedings. Not only did this signal the Court’s desire to move forward with our case, but the Court specifically reopened discovery so attorneys and the Court could examine an updated version of the NTP’s review, without it needing to be published. The EPA’s objections to using any version of the NTP report besides the “final” version was based on their concern that the NTP’s findings would be made public prematurely. To circumvent this objection, the Court placed the NTP’s review under protective order so that it will only be available to the parties involved, the Court, and expert witnesses. The public will not have access unless the Court decides otherwise, or if FAN wins a separate pending legal case on our Freedom of Information Act Request (FOIA) for the report.
Thankfully, the Court made it clear to both parties that it expects to be provided with the NTP review before the next status hearing set for early January, regardless of what process is used to get it. The Court urged both parties to come together and find a way to get the current NTP review into the Court’s hands “voluntarily,” but our attorney, Michael Connett, was also told that if he needs the Court’s help “using subpoenas or a motion to compel,” he knows where to find the Judge. This was another victory for our side, as the Court clearly agreed with our argument that the updated NTP draft was worth looking at, and took action to obtain it.
In agreement with FAN’s position, the Court reiterated its preference for a phase-two of the trial, with additional expert testimony. The Court also wants the NTP Director to explain in detail the remaining timeline for publishing their “final” review and the criteria for determining whether the review will be published or not.
Once the Court has the NTP review, the Judge will read it, as well as consider the NTP Director’s responses to his questions. A determination will then be made whether to wait a little longer for the NTP to publish a “final” report, or admit the NTP draft as evidence, allowing us to immediately move the trial into the next phase.
We should find out at the next status hearing, scheduled for Tuesday, January 10, at 2:30PM (Pacific).
- For more information about lawsuit, including a trial timeline and documents, click here.
- For more information on the NTP’s Review, click here.
Thank you for your continued support,
Stuart Cooper
Executive Director
Fluoride Action Network
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