Exclusive: Historic Fluoride Ruling Overturned - What Comes Next? with Michael Connett

Hey, everyone, this is Derek Brose with the Conscious Resistance Network. And today we are talking about fluoride once again. We are continuing our dialogue on the fluoride lawsuit which has been happening now for a decade. And my reporting on it has been taking place since 2020. Many of you know that I've followed the various phases of the courtroom drama and the subsequent appeals and everything that's been going on with it. Today's guest is a returning guest, Michael Conant. The lead attorney who's been fighting this battle is here today to give us the latest on this important issue and find out more where it's at, where it's going and if there's anything that you, the public, can do about it. So, Michael, thank you so much for joining me again today.

Thanks for having me, Derek. I appreciate it.

Yeah, let's go ahead and dive right into it. It's been a, you know, a little bit since we did our last interview. Last time we talked it was in the appeal phase. The Trump administration came in. They continued the last minute appeal by the Biden administration and that's been ongoing. There's been some arguments back and forth, but now we actually have some new developments. For those who haven't heard, basically the decision was overturned and it's been sent back to the lower courts. I'd like you to give us really a breakdown of what happened with this latest decision, where it's at now and, and what you're prepared to do to try to keep this fight going.

Right. Well, as you mentioned, the new administration, the Trump administration, decided to appeal to continue with the appeal of the court's decision. The court had found the district court had found that fluoridation poses an unreasonable risk to human health and had ordered the EPA to take regulatory action to address that risk. And despite fluoridation being one of the priorities of the MAHA agenda, the Make America Healthy Again agenda, the EPA decided to continue with the appeal. And the EPA did not challenge the district court's judgment on the merits. The EPA did not, you know, contest that the, the court's decision that there was an unreasonable risk. Instead, EPA raised various procedural criticisms of how the district court went about handling the case. And we had oral argument in March of this year before the before a panel of the Ninth Circuit Court of Appeals. And I was expecting to wait. You know, typically with cases like this on appeal, you typically wait six plus months before you get a decision. And so I was quite stunned when on May 21st. So just a couple weeks ago we got the opinion from the panel. And that was the first thing that surprised me, that it was that quick. The second thing that surprised me is how brief the opinion was. I mean, it was less than seven pages of text, and it was a very, very. There was very little reasoning and analysis in the opinion. It basically just accepted EPA's argument that the district court violated this doctrine called the party presentation principle. It's a relatively obscure legal doctrine. I frankly hadn't even heard of it before EPA's appeal. But the court found that the district court violated that doctrine by considering additional evidence after the close of the first trial. The first trial, Derek, as you recall, was in the summer of 2020. And the 9th Circuit said at that point in time, the court should have made its decision, and it was legal error for the court to want to hear additional evidence. And if you recall, what the court wanted to hear primarily at that time is the court wanted to hear what the National Toxicology Program, the ntp, had to say, because the NTP was working on a comprehensive review of fluoride's impact on the brain, on brain development, and it wasn't yet published. And the district court wanted to see what the NTP was going to say, which makes sense because, you know, you want to see what the federal government's own experts are going to conclude about fluoride and, and the brain before you issue your, your final decision. But 9th Circuit held that was error, so much so that they vacated the district court's judgment and have ordered the district court to forget and ignore everything that happened after the first trial and issue a new ruling based only on the evidence as it existed in the summer of 2020. That's it. The court has to forget everything it's learned since then and has to make a ruling based, make a ruling on whether fluoridation poses a risk to human health based on an outdated, stale, factual record. So, sadly, that's where we're at. And so the judge's order has been overturned.

And so before we get into the details, when you say send it back to the court, is it going back to the same judge, Judge Chen, is he going to be the same one to rule on this?

Yes.

And you, you know, when we, so we knew that they were making these arguments, as I said, I've been reporting on this, and I think we did an interview last year when the, the first arguments were put forward by the Trump administration, and we knew that they were arguing this, that Basically everything after 2020, as you said, was null and void. And, and the court shouldn't have considered, and I think maybe most of the public, it sounded kind of ridiculous, the idea that I think you even. There was a quote from you that said the court is being asked to just ignore everything that's happened and to ignore the data that's been presented doesn't really sound very scientific to most people. I would say to just tell, tell the court, ignore four or five years worth of evidence. But nevertheless, those arguments have succeeded. And I mean, as you said, it's sort of like a doctrine you weren't even that familiar with. Do you have any specific thoughts, whether, you know, professional or personal, on why the court ruled in this way? I mean, what is this? Just simply as some people have argued, including Dr. Philippe Granjean said, that the fluoride lobby, you know, is very powerful in trying to intervene. Do you have any insight into that? Or do you think this is literally just a procedural, you know, argument that. Well, the court erred by, by considering this and I guess the follow up question that was it unusual for Judge Chen to set a second phase of trial the way he did?

I'll start with the latter question about Judge Chen deciding to do a second trial. I mean, that is, that is, that is, I guess you would say, unusual. And the whole case was kind of. But I think that reflects in part the novelty of the litigation. This is the first time a citizen petition under the Toxic Substances Control act has ever gone to trial. So no judge has ever had to deal with these issues under this statute. And you're dealing with questions of chemical risk assessment and whether the evidence is sufficient to meet EPA's risk risk determination standard. So it was a complex law and with, you know, cutting edge science and, you know, so it was already sort of an unusual situation. And I think the court wanted to just be extra careful to make sure that it considered all of the available and most reliable evidence. And that's what I think makes the ninth Circuit's decision so, you know, difficult to, to accept, which is they are the district court's decision, the district court's efforts to get the decision correct, to rely on the most reliable evidence. Because remember, Derek, both parties in this case, the EPA and the plaintiffs, agreed that the National Toxicology Programs review was like the most reliable assessment for the court to rely upon. You know, it was, it was a critical piece of evidence. Both parties agreed with that. So naturally the court wanted to consider that. So it's just hard, hard for me to accept that that is a legal error of the kind that warrants vacating the entire judgment. You Know, I don't think most people would view that as an abuse of discretion. You know, the court was trying to get it right, which is what the court should have been trying to do. Right. But leaving that aside, you know, to your question about the Ninth Circuits opinion, you know, I would just reiterate that the brevity of that opinion was very, the brevity of it, I think said something about the way the panel viewed the case. Obviously, I can't read the minds of the judges on this panel, but you have a case that was, that lasted up until about upwards of 10 years of total time with two bench trials, an enormous amount of judicial effort from Judge Chen, extensive expert testimony, you know, many, many documents, you know, and you have the Ninth Circuit just sweep it all aside in a little seven page opinion which doesn't even engage the arguments that we made. So I think the brevity of the opinion, the lack of analysis that it provides is itself a reflection of the court's view of the case. And you know, for a case with this much at stake, with a case with this much evidence in the record, with a case where the district court puts so much time in, I would have thought that we would have at least had an opinion that addresses the arguments at issue that explains, that explains to us why they disagree on argument A, argument B, argument C, argument D, argument E. Right. Like show your work. Don't just say we agree with epa decision vacated.

Yeah, I mean, obviously I'm not an attorney, but as a journalist who's followed not only this, this court case, but others, as you said, I mean, it's typically there is reasoning, it's very easy. It makes the job of a journalist easier to say, hey, look, here's what the court argued, here's the reasons they made the decisions. But in this case, they, they didn't do that so much. Where are things at now? I mean, do we have any sort of idea on a date when Judge Chen would take this up again or. And if that does not go in the favor of the Fluoride Action Network, are there any other steps left like appealing to the Supreme Court? What's the next phase of this?

Well, you know, we're still working through what the next phase might be. You know, one of, you know, we, we have appellate options. So, you know, we are looking at the potential for appealing the panel's decision, which could take one of two forms. We could petition for what's called an en banc hearing, which would be a new hearing by a larger number of judges. On the Ninth Circuit to reconsider the panel's decision. That's one option we're looking at. And then we're also considering the possibility of petitioning the Supreme Court to, to grant certiori, which means to consider the case and to argue before the Supreme Court. Now, the chances of getting en banc hearing and the chances of getting Supreme Court review are generally very low. So it's not a likely, you know, I mean, I, it's hard as a general matter. It's hard to get those reviews. You're not, you're not guaranteed it as a matter of right, you know, so. But it's something that we are certainly considering. And because I do think, I do think this doctrine of the party presentation principle and the scope of it is important, I think the Ninth Circuit's application of this principle here is very expansive. And I do not believe there is a single prior case where any court in this country has ever applied the doctrine in as expansive a way as the 9th Circuit panel did here. And so I think it does raise an important question about, well, what is the, you know, what is the scope of this doctrine, you know, and what, and how far does it go? And I so if we, if we filed an appeal, that would be the focus of it. Now, whatever happens on the appeal, whether we decide to appeal or not, or if we appeal and we lose, it will go back to Judge Chen, the district court judge, and who will then have to make a ruling based on the record as it existed in the summer of 2020, and again have to bury his head in the sand and ignore everything that he's learned since that time.

Well, I guess we will wait to see where that goes. And again, I mean, I appreciate all the effort you've put in there. I did wanted to get to a couple other questions about Floyd related to the bigger issue. You sort of hinted earlier how maha the Make America Healthy Again movement, which was largely connected to the presidential campaign, then presidential candidate Robert F. Kennedy, Jr. Now HHS secretary. And we've had statements from EPA, Lee Zeldin talking about fluoride as well. And I find it to be odd. And I'd like your just your personal or professional opinion on this, how we have those statements from Robert F. Kennedy, Jr. And from Lee Zeldin and, you know, going to the press conference in Utah and elsewhere. But then at the same time, we have the federal government, specifically Solicitor General John Sauer, in court fighting to keep fluoride in the water, basically fighting against the federal court's ruling he's also the same one arguing for the federal government, you know, for glyphosate immunity. These are two big issues, I think, that are very important to the MAHA movement. What are your thoughts on that? How we see, sort of, on one hand, it appears like the. I know the, the government's not a monolith. Right. So there's a lot of different departments and, and opinions and views, but we have one, one area of the, the Trump administration, you know, claiming that they're. These are issues they care about, and then other parts seemingly fighting against those. Those same efforts. What are your thoughts on that?

I mean, yeah, it's, you know, it's perplexing. You know, you have Secretary Kendi saying that, you know, the evidence is, is sufficient right now, we really need to stop fluoridation. And, you know, indicated that that would be a priority for the incoming administration. And then you have the EPA now granted, Secretary Kennedy does not have authority over the epa. So that's an important thing right up front. The EPA is an entirely separate agency, but in the past, the EPA has always been very deferential to the judgment of the HHS when it comes to fluoride. So the fact that you had the incoming hhs, the secretary being very outspoken on the fluoride issue, was a very good sign that you would see a change in posture by the epa. But we didn't see that. And the EPA had the easiest. I mean, you're talking about a layup. You're talking about a layup. This was the easiest, easiest layup out there. If the new administration wanted to end fluoridation, they had a court order telling them to take regulatory action, and that would have, you know, and the likely effect of that would be to ban fluoridation. They had an order from a court to do that rather than act on that, rather than say, yes, we'll go ahead and do that. They have now spent the last two years in court arguing to overturn the district court's order, which they've now done. So, you know, yeah, it's, it is a, it's, it's, it's, you know, it's a hard to understand. You know, you have fundamentally, fundamentally contradictory things being said by two agencies of the federal government. It. And, but that's, that's where we're at.

That is indeed where we're at. And we'll continue to watch it. It's been, it's definitely been, I think, perplexing to a lot of people who are still supporters of Maha. And, and that General idea of trying to improve Americans health and who are seeing conflicting messages coming from the administration. I wanted to ask you about this, this other study that just came out. This is a, we're looking at on screen an NBC article here. Fluoride in drinking water has no effect on IQ function. Long term study shows. Here's the study. Municipal water fluoridation, Adolescent IQ and cognition across the life course. And they're looking at data from Wisconsin. What do you think about this headline and how accurate is this headline and the claims of this study? Because it doesn't really square with the research that I've seen you present or that I've seen over the years. So I have a feeling there's some things we're not seeing here in this headlines.

Derek. This is the kind of study that if I had a cross examination in a trial of an expert on this study, I would annihilate it. The study would have zero weight. It is one of the worst studies I've seen, especially one published in a prominent high quality journal on fluoride and iq. It's really, I mean, it is bad. Okay? Like bad. I'll tell you, you know, one of the major problems, okay, so this, this study's, this study is focused on a cohort of children born in Wisconsin in 1939, 1940. Now Derek, you saw the title there, it says, you know, across the life course. So the study frames this as we are studying the effect of fluoridation from birth. From birth. They say it many times from birth. Okay. And that's important when you're looking at fluoride and iq because we know that the early life stages, in utero, in the womb and in early infancy are a critical window of vulnerability for fluoride in the brain. And that's where you see the highest risks. Okay? So you definitely, if you, if you really want to competently study fluid and iq, you want to make sure that you're, you're, you're assessing fluoride exposure at that early stage. And they claim to have done that. So what's the problem with what they did? Well, the children were born in 1939, 1940. Water fluoridation did not begin in the United States, including in Wisconsin, until 1945. And even in 1945, you barely had, you know, more than a few communities fluoridating. By 1950, you still had very few communities fluoridating. So this cohort of children was born six years before any community added fluoride to its water. Okay. So you ask how is it that they are assessing fluoride exposure from birth. So what they did is they, and they didn't have any data, no data on the levels of fluoride and water supplies in Wisconsin in the 1940s. They had no data on how much any individual child was ingesting a fluoride in the 1940s or 50s. Nothing. They had no individual exposure data. What they did instead is they got some, they got some well fluoride data. So data on the levels of fluoride in certain wells in Wisconsin, it's from a 2020 publication. They inferred that those fluoride levels would be constant. And they went back to the 1940s. Okay, let's just say that's a valid assumption. It may be, I don't know. But this is the worst part of the study. This is where, Derek, it just gets really bad. They assumed if one well, if one well in a county in Wisconsin had optimal fluoride levels, so 0.7 parts per million, then every single child in that county was considered to be exposed to fluoridation. 1 well, okay, and Derek, we've now gotten their data. We've actually been able to break it down by county. And you look, and there are times, Derek, in the so called fluoridated counties where every single well, except for one tested with low fluoride. But just because one well tested with higher fluoride, they treated every child in that county as fluoridated. And if that wasn't bad enough, if that wasn't bad enough, they never accounted for the fact that most kids in many of these counties didn't drink well water at all because they drank surface water from the public water supply. Like a lot of kids in Wisconsin who live by the Great Lake, okay, they are drinking lake water, which has very low levels of fluoride. These authors, who are mostly sociologists, made no attempt whatsoever to account for that most basic elemental fact. So the study is striking in just how pathetic it is in identifying who is exposed to fluoride and who was not. And what we know, and Derek, you probably recall this from trial, is when you have what's called exposure misclassification. So when you are misclassifying who is exposed to fluoride and who is not, you are adding a lot of noise into your data set. And the effect of that is to bury any signal that you might have in that data. So let's say that fluoride was reducing IQ in this population. You're now introducing so much random noise that you're never going to Hear that signal, you're not going to see that signal. So it is reported as a no effect study. But that no effect, really all that's going on here is they had an exposure metric that has no connection, none to reality.

Yeah, well, I appreciate you breaking that down. And you know, a couple of thoughts come to mind. First off, as you've outlined there so well, that there's, there's no individual individualized data there. And the headline of course screams that no impact from fluoride. That's what the average person is going to see in that big headline. And that headline, as you know, was repeated across mainstream media for a good week or so. And, and this is something that we did see in, during the trial, the phases of the trial, the importance of the individualized data. Not only that, but as far as I could see, it didn't consider other sources of fluoride as well that people might be ingesting throughout that period of time. So it's, you know, it's just not an accurate way to look at this information. Why do you think there is such, I mean, is this, is this, these types of studies coming out at this point in time, when the trials going on in the background, when you had the NTP study, this is only the first of a couple in the last couple of years that have claimed that there's no impact of fluoride on iq. Do you think this is the work of that fluoride lobby that Dr. Grand Jean spoke of? I mean, to me again, I'll be the speculative, you know, conspiratorial journalist here. It doesn't seem coincidental, the timing of these things. As you guys are in court arguing this, do you think there's any, you know, any relevance there or is this just the timing just worked out the way it is?

Well, you know, Derek, I'm an attorney. I, I need to have documents. I need to have documents for me to basically say, you know, you know, some, this is why this happened. Okay? So like, I can't speak to whether there may be special interest at play. I just don't have the documents to say that. I mean, you know, and there's, there's a equally possible counter, you know, scenario here and that may be that you have a bunch of sociologists who believe that, oh my God, why is fluoride being attacked? Fluoride is like this important aspect of our public health system. Geez, we have these crazy maha people who are challenging fluoride and they're challenging, so they may be like, okay, well let's study fluoride. And you know, maybe they have some unconscious biases at play there where even though they might be thinking, okay, we're scientists, we're going to approach this scientifically, you know, was there an element of outcome driven sort of motivation there to do their part to defend fluoride from these people, these skeptics questioning it? I don't know. You know, that's, that's, but I'm saying, like, that's, that's a possibility.

Sure.

But you know, it could also just be that they, they just said, oh, fluoride's an interesting issue, let's study it. And they did a really pathetic study and they didn't, you know, and, but they don't appreciate that. I, you know, but I can't speak for that.

I understand. And I think that if anything, one of the takeaways here hopefully will be for the listeners is, and I think my audience is probably on board with us already, but maybe more of a mainstream audience who hears study says and then assumes, well, that must be, that's the science, right? The study says it, right, that we know that studies can be manipulated and data can be, you know, biases come in and data can be leaned one way or the other. And so it's important to not just look at the headline because unfortunately, those who for whatever reason are very adamant that fluoride is completely safe, like the Johnny Johnson's of the worlds and the, you know, the ADA and others, they love to get these headlines and run with them and then, you know, shout them from the rooftops to anybody who will dare say that there's harm coming from fluoride, that, look, this shows there's no harm. You guys are wrong.

And, and Derek, that's why, that's why it was so valuable to have a trial, you know, because, you know, the crucible of cross examination, you know, because what we're generally left with is competing sound bites, competing press releases and you know, there's no real dialogue or engagement or debate, you know, in normal everyday life on the fluoride issues. So you have the American Dental association come out and say this is absolutely safe and effective and everyone questioning it, it's just wrong. We don't worry about them. And you know, with a trial and with a, with, with, with a, with being able to cross examine the experts is, you can really just go in detail and scrutinize the claims so you don't have, in a trial, your ability to rely on rhetoric is very limited. You have to back what you're saying up with data and I can take the study out and I can point to this table and I can point to that table and you can really show the weaknesses in certain studies that the media would tell you are just, you know, the definitive word or these really strong studies and you look at them under the microscope and they, they, they, they, they just don't hold up. So that was a really remarkable thing that we had with this litigation is we had that opportunity to look under the hood to really question and scrutinize the so called safety studies. And I just wish we had that opportunity with this new study from Wisconsin because I could tell you that study would fall apart on the stand so quickly, it would be given very little weight in this case.

I wish I could see that as well because you did a great job with the other studies. And I will just reemphasize for those who haven't followed either my written articles or, you know, Children Health Defense or any of the previous interviews, I will link those. For those who want to get caught up on what we witnessed because truly the trial, whichever way it goes, and whatever the courts are now saying about, forget the second phase, it was historic. And the sense of all the information, all the data that came out, your, your, you and your team's ability to tear apart the bad studies, but also not to mention the various emails that came out, the, you know, the evidence of clear interference and attempts to suppress the NTP studies from within the U.S. government. I think all of that is historic information that really should not be forgotten. Michael, I appreciate you taking the time to really break all this down for us today. Where is the best place for buddy to follow up with you? I know you've got a Twitter account these days. You're fairly active posting updates.

Yeah, that's probably the best, the best place to follow some of the updates on the case as well as, you know, Fluoride Action Network has an active Twitter page as well. And I think those are two good sites for the, for the latest updates. And you know, Derek, I would just close by saying, you know, to reiterate something that you just sort of alluded to, which is, you know, nothing that's happened with the ninth Circuit's recent opinion changes or challenges the factual findings of the district court. Right. So the 9th Circuit vacated the order on legal procedural grounds, but that does not undo what the judge found factually. You know, According to the 9th Circuit, the error that the judge made was considering the latest evidence. That was the error. Like you shouldn't have considered the latest evidence. You should have stopped in 2020. But I think it's important for people to know because, you know, the judge made his decision in 2024 based on all the evidence, the most up to date evidence, and the EPA did not challenge that factual finding. And so I think that in my view, that effort and that result, you know, stands the test of time and is as relevant today, even after the Ninth Circuit's reversal, as it was back then.

Absolutely. That's a great point. Thank you for making that, Michael, and I appreciate your time. Again, I'll put a link to his Twitter account for those who want to follow there and links to our previous interviews. Thanks for joining us, everybody. This will be not the end of this case. We will continue to follow it. We will continue to continue to just keep up with the updates. And hopefully in the next couple years, we will be celebrating the end of water fluoridation in the United States and see where that takes us. But for now, we're gonna. We're gonna have to leave it there. So thank you guys, everybody for joining. Until next time. Remember, you are powerful, you are beautiful, and you are free. Thank you. Since 2012, the conscious resistance Network has been an independent media organization focused on empowering individuals through education, philosophy, health, and community organizing. We work to create a world where corporate and state power do not rule over the lives of free human beings. Our motto is leading by example and helping others and their pursuit of freedom. Visit theconsciousresistance.com to find our articles, documentaries, interviews, podcasts, books, and more. Remember, you are powerful, you are beautiful, and you are free.