Environmental Litigation Update - March 2025
Sign Up for PublicationsThe Growing Wave of PFAS Litigation
Once a niche area, issues around PFAS or so-called “forever chemicals” now receive regular media coverage; alongside public awareness, an increasing wave of regulation and litigation has been building, drawing predictions of a scale that could outsize the fights around asbestos. Since their invention in the 1950s by 3M, the now thousands of PFAS have been used in industrial, commercial, and consumer contexts. Durability defines these chemicals, due to distinctively strong chemical bonds. That strength facilitated the use of PFAS in products including clothing, furniture, cleaners, and food packaging—such as for stain resistance and non-stick. Durability also limits or prevents certain PFAS from breaking down, resulting in accumulation. Today, these chemicals are found everywhere: in water supplies, food chains, and human bodies. Although the science on causation is in its early stages, exposure to some PFAS may have links to certain health effects. Litigation over PFAS began against DuPont in 2001, but the scale and pace of suits has exploded, expanding from contamination of drinking water to claims such as false advertising and bodily torts, and reaching retail targets, not just PFAS manufacturers. This landscape will continue to be transformed by changes in state and federal regulatory and reporting regimes, issues around proving causation from alleged harms of PFAS, and potential shifts to the bankruptcy forum as litigation exposure swells.
Government Regulation and Enforcement Developments
- CERCLA & Federal Action:
In April 2024, the EPA designated PFOA and PFOS as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). Once in effect, this designation will empower the EPA to investigate and demand remediation of sites—or reimbursement for its own remediation of sites—contaminated with PFOA and PFOS, and in turn will facilitate private CERCLA litigation to recover cleanup costs. Responsible parties could include current owners of contaminated properties, past owners during a release of chemicals, and parties who arranged or transported PFOA or PFOS. CERCLA empowers the EPA to seek full remedial costs from a single actor, leaving private parties to make themselves whole through claims against other parties with statutory responsibility for the contamination. When it released the final rule, the EPA announced limited enforcement priorities, and the shift in administrations could further alter how and whether this new authority is utilized. There may also be secondary effects, such as insurance disputes over CERCLA liability and shifted diligence in corporate and real estate transactions.
In April 2024, the EPA also issued federal standards for six PFAS in drinking water, under the Safe Drinking Water Act. The EPA announced $1 billion for testing and treatment; public water systems must complete initial monitoring and have five years to reduce PFAS to identified levels. The standard has been used to bolster state law PFAS theories. In April 2024, fifteen California cities and water districts sued to recover groundwater cleanup costs from manufacturers and sellers of products containing PFAS, citing the EPA’s water contamination levels.
- State Regulations & Enforcement:
Numerous attorneys general have brought suits (30 in total by one count) against chemicals manufacturers, sellers of products including PFAS, and public authorities that have used PFAS-based firefighting foam. A number of states’ environmental statutory regimes incorporate CERCLA’s hazardous substance designations, rendering this federal change an expansion of state laws and empowering state enforcement. States are also enacting laws regulating PFAS, including prohibiting products containing intentionally added PFAS and mandating reporting on PFAS. Maine has enacted perhaps the most stringent law, requiring notification to a state agency of any product containing intentionally added PFAS.
Scientific Understanding of Harms and Causation Evidence
Science establishing a causal connection between exposure to specific PFAS and health effects remains nascent. The first class action was brought in 2001 against PFAS manufacturer DuPont challenging drinking water contamination. When this action settled, over $200 million went to medical monitoring and a panel of scientists studying links between PFOA and human health. In 2005, the “C8 Science Panel” announced probable links between PFOA and certain conditions including diagnosed high cholesterol, ulcerative colitis, thyroid disease, testicular cancer and kidney cancer, and pregnancy-induced hypertension. This study remains a prominent driver of PFAS litigation. For example, in ongoing firefighting foam litigation, personal injury bellwether trials will be focused on four health effects—kidney cancer, testicular cancer, thyroid disease, and ulcerative colitis.
These plaintiffs—like others—will bear the burden to demonstrate that their harms were caused by a certain chemical and a particular defendant. In that way, the limits of the impact of this early science in litigation have also become clear. These scientific and causation challenges have potentially contributed to the rise of consumer claims that do not rely on health effects, including false advertising claims challenging the veracity of marketing, primarily against products with labelling in the vein of “safe,” “all natural,” “environmentally friendly,” and the like, and claims based in state law warranty and negligence theories.
Potential Shifts to the Bankruptcy Forum
Some anticipate PFAS manufacturers or sellers of firefighting foam may land in bankruptcy. In May 2023, fire protection company Kidde-Fenwal Inc, which sold foam products containing PFAS from 2007 to 2013, filed for Chapter 11 protection in Delaware. Kidde-Fenwal announced a $730 million settlement with Carrier Global and PFAS claimants, which the company intended to use to find a Chapter 11 plan and emerge from bankruptcy. As sources of liability grow, this may preview a future model of global resolutions reached in the bankruptcy venue.