Welcome
Environment & Energy Report

Forever Litigated ‘Forever Chemicals': A Guide to PFAS in Courts

Jan. 13, 2020, 11:01 AM

Court dockets are ballooning with litigation over PFAS, a vexing family of chemicals used in many consumer and industrial products.

Some types of the man-made per- and polyfluoroalkyl substances are called “forever chemicals,” a shorthand for their ability to build up and stick around indefinitely in people and the environment.

Health risks of some types of PFAS have become clearer in recent years, prompting a rush to the courtroom by people exposed to the chemicals, utilities dealing with contamination, and shareholders facing the financial risks. Lawyers have compared the legal onslaught to litigation over asbestos, tobacco, and lead paint.

Here’s a rundown of key cases.

Multidistrict Litigation

Hundreds of high-stakes PFAS cases are bundled together in multidistrict litigation in Ohio and South Carolina. MDLs are federal court proceedings that roll numerous individual cases into a single docket, allowing a presiding judge to efficiently handle pre-trial motions and other procedural issues.

A judge in South Carolina is handling hundreds of lawsuits against 3M Co., E.I. du Pont de Nemours & Co., and other manufacturers over PFAS present in firefighting foam used across the country. The fast-growing docket is in its early stages.

A judge in Ohio, meanwhile, is fielding dozens of lawsuits involving PFAS water contamination near a manufacturing site on the Ohio River. Taft Stettinius & Hollister LLP attorney Rob Bilott, who brought PFAS concerns to light in a related case 20 years ago, is involved in the Ohio MDL.

Class Actions Over Contamination

Other PFAS cases are proceeding as proposed class actions, in which a set of named plaintiffs aim to represent a broader group of people who have experienced the same alleged harms. A judge must approve the class status.

Residents of communities in Vermont, Michigan, North Carolina, and New York have filed class actions targeting companies with local manufacturing sites that made PFAS chemicals or used them in their operations, including 3M, DuPont, Saint-Gobain Performance Plastics Corp., and shoemaker Wolverine World Wide Inc.

In another proposed class action, former Ohio firefighter Kevin Hardwick is pushing the court the recognize a nationwide class of plaintiffs exposed to PFAS and order major manufacturers to fund a scientific panel to study health impacts.

Class Actions Over Securities

Shareholders have filed several cases accusing chemical companies of misleading investors on the extent of PFAS liabilities. The litigants say company executives knew about the financial risks for decades, but only recently disclosed them.

The cases, which allege violations of securities laws, target 3M and DuPont spinoff The Chemours Co.

Corporate Lawsuits

Businesses are also battling one another over PFAS. The most high-profile fight is between DuPont and Chemours. DuPont spun off its performance chemicals business into Chemours in 2015. The young company says DuPont left it holding the bag for PFAS liability.

Other corporate legal skirmishes are playing out between Valero Energy Corp. and chemical manufacturers for alleged PFAS contamination at refineries in Oklahoma and California.

State Actions

Many states have been busy taking legal action to address PFAS.

New York, New Hampshire, Vermont, New Jersey, and Ohio have all filed lawsuits over the past two years targeting chemical companies. Some of the cases address alleged contamination linked to firefighting foam and have been folded into the multidistrict litigation in South Carolina.

New Mexico, meanwhile, is going after the federal government over fouled water at two Air Force bases in the state.

Military Cases

Other cases also center on military operations. Pennsylvania residents are suing the Navy over PFAS in groundwater near two naval sites, and the Air Force is facing litigation over contamination claims from a water utility in Colorado and a farmer in New Mexico.

Other lawsuits against chemical manufacturers involve military sites, and similar litigation is expected to pile up.

Utilities Cases

Water utilities that have found PFAS in their supplies have lined up in court to get 3M, DuPont, and other companies to take responsibility.

Lawsuits are pending from utilities in New York, California, New Jersey, and Alabama.

In New Hampshire, meanwhile, the Plymouth Village Water & Sewer District has teamed up with 3M to sue the state over stricter limits on PFAS in drinking water.

—With assistance from Pat Rizzuto, Sylvia Carignan, and David Schultz.

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloombergenvironment.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Renee Schoof at rschoof@bloombergenvironment.com; Anna Yukhananov at ayukhananov@bloombergenvironment.com

To read more articles log in. To learn more about a subscription click here.