USA: Anti-Fluoride Win Merits $9.5M In Fees From EPA, Judge Told

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Anti-Fluoride Win Merits $9.5M In Fees From EPA, Judge Told

LAW360 - December 18, 2025

By Bonnie Eslinger

Anti-fluoridation groups urged a California federal judge in a hearing Thursday to grant them $9.5 million in attorney fees for winning a 2024 decision that the U.S. Environmental Protection Agency's "optimal" fluoride level for drinking water poses an unreasonable risk of lowering children's IQ.

The litigation, first filed in 2017, went through two trial phases, starting in 2020 and culminating in the decision by U.S. District Judge Edward M. Chen in September 2024.

In an October filing to the court, the EPA argued no fees should be awarded for the first trial phase. But at the start of Thursday's hearing in San Francisco, Judge Chen made it clear that he saw the trial as "continuing" from the first phase to the second.

"I did consider the trial records in both phases," the judge said. "So, it seems to me that it's fair to include time spent on the first trial."

A lawyer for the government, Brandon Adkins of the U.S. Department of Justice's Environment and Natural Resources Division, said then perhaps not all the fees from the first trial should be awarded.

While some of the work in the first phase impacted the second part of the trial, "by and large, the second trial was a separate evidentiary record," Adkins argued.

The EPA's lawyer reminded the judge that the plaintiffs had struggled to prove standing for the first trial.

"Your Honor found that they did not present sufficient evidence to connect the claimed harms with community water fluoridation," Adkins said, adding that if the judge had dismissed that case, there would be no fees for that first phase.

A lawyer for the plaintiffs, Michael Connett of Siri Glimstad LLP, underscored that the court ruled in 2021 that it didn't have to rule on the standing issue.

"The court did express concerns about the plaintiffs' standing but did not make the determination that the plaintiffs lacked standing," Connett said.

In addition, the work done for the first phase of trial was "indispensable" to the work and the evidence in the second trial phase, the lawyer said.

Connett noted that even the EPA cited to first trial evidence — 75 times. Every exhibit that was introduced into evidence in the first phase was an exhibit in the second phase, the lawyer added.

The EPA's argument, he said, is "akin to saying an author should be paid only for the second edition of this book, not for the first edition."

The EPA also argued the rates presented for the fees for Connett and others who worked on the case are too high and not based on "objective" data for environmental litigation in San Francisco.

Another lawyer for the plaintiffs, Richard Pearl of the Law Offices of Richard M. Pearl, told the court that under case law, even when public interest lawyers bill their clients at lower rates, "they're still entitled to market rates" for the cases they win.

Adkins argued the plaintiffs had not submitted to the court that they've ever been awarded the rates they now assert they're due.

"I think that's a pretty telling point," the EPA lawyer said. "There is some evidence in the record of the rates that their clients have paid them in noncontingency cases, and they're hundreds of dollars lower than what they're claiming there."

According to the plaintiffs' filings, Connett, the lead attorney on the case, has requested hourly rates ranging from $663 in 2016 to $1,033 in 2025.

Pearl told the court that the case was not your typical environmental case.

"This is a case involving very sophisticated and difficult scientific issues," the lawyer for the plaintiffs said. "It's a case that would affect the health of millions of children in this country. And Mr. Connett took that case on."

The claims were first launched by Food & Water Watch Inc., Fluoride Action Network, Moms Against Fluoridation and several individual plaintiffs in 2017. The groups sought to force the EPA to make a new federal rule under the Toxic Substances Control Act that would ban fluoride from being added to drinking water.

For decades, local municipalities in the United States have added fluoride to public water supplies at levels of roughly 0.7 milligrams per liter to boost dental health and prevent tooth decay, but throughout the trial, the groups' experts testified that the latest scientific studies suggest fluoride is neurotoxic and that even a low level of prenatal exposure lowers IQ.

Judge Chen's decision followed a two-week bench trial that wrapped up in February 2024. He said that under the Toxic Substances Control Act's standards of review, he owed no deference to the EPA's position that the level of the chemical is safe. He said the agency improperly ignored "the growing and robust body of evidence indicating an association between fluoride intake and cognitive impairment in children" when it denied the groups' petition to ban fluoride in drinking water.

The EPA's appeal of the decision is still pending.

The groups are represented by Michael Connett of Siri Glimstad LLP, C. Andrew Waters and Kay Reeves of Waters Kraus Paul & Siegel LLP, Richard T. Drury of Lozeau Drury LLP and Richard Pearl of the Law Offices of Richard M. Pearl.

The government is represented by Adam R.F. Gustafson and Brandon N. Adkins of the U.S. Department of Justice's Environment and Natural Resources Division.

The case is Food & Water Watch Inc. et al. v. Environmental Protection Agency et al., case number 3:17-cv-02162, in the U.S. District Court for the Northern District of California.

--Additional reporting by Dorothy Atkins and Juan-Carlos Rodriguez. Editing by Janice Carter Brown.

SOURCE:
https://www.law360.com/articles/2423847 ... judge-told