Media Mention

Erik Baptist Discusses Potential Impact of Trial in Water-Fluoridation Lawsuit

Bloomberg Law, Law360
June 8, 2020

Erik C. Baptist, a partner in Wiley’s Environment & Product Regulation Practice, was quoted by Bloomberg Law and Law360 regarding the trial starting today in a landmark water-fluoridation lawsuit.

The U.S. District Court for the Northern District of California will hear arguments presented virtually by health advocacy groups and the U.S. Environmental Protection Agency (EPA). The outcome could determine “the future of chemical risk management at the end of the day,” Mr. Baptist told Bloomberg Law in a June 5 article.

Under the Toxic Substances Control Act (TSCA), as amended in 2016, the EPA is evaluating whether certain chemicals create a public health risk. If a chemical is found to pose an unreasonable risk, then the EPA must regulate it, according to the article. Section 21 of TSCA allows entities to go around the prioritization and risk evaluation processes by petitioning the EPA to regulate or prohibit certain chemicals. If the EPA denies that petition, then the petitioners may ask a court to determine whether that chemical presents an unreasonable risk and order to EPA to regulate any risk.

Mr. Baptist noted that this is the first time a court has held a trial on a challenge to the EPA’s decision not to regulate a chemical under Section 21 of TSCA.

“When Congress amended the law, I would argue that they did not appropriately and accordingly amend Section 21 to correspond to the new risk evaluation process established under Section 6,” Mr. Baptist told Law360 in a June 5 article. “And that created a potential dual-track risk evaluation process where entities could seek to regulate existing chemicals outside of the risk evaluation process.”

If nongovernmental organizations disagree with future EPA decisions regarding a chemical’s potential risks, they might use the petition process and related litigation under TSCA Section 21 “as the preferred option to get the results they seek,” Mr. Baptist told Bloomberg Law.

With respect to the trial being conducted by videoconference amid the COVID-19 pandemic, Mr. Baptist told Law360 that “some people might argue that this is an unfair advantage to one particular side or the other.”

“But in this case, the trier of fact is the judge as opposed to a jury,” he added. “And this case really is going to focus on the expert testimony as opposed to fact witnesses and the credibility of the witness on the truth or veracity of their testimony. … It’s not something that needs the drama of a courtroom. I think both sides will be able to make their case fairly and adequately.”

To read the Bloomberg Law article, click here (subscription required). To read the Law360 article, click here (subscription required).

Read Time: 2 min

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