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Practices

PFAS Litigation and Environmental Regulation v1

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Leaders

Per- and polyfluoroalkyl substances (PFAS) are chemical compounds that have long been recognized for their water-resistant and stain-resistant properties and stability, earning them the moniker of “forever chemicals.” As a result of those properties, PFAS compounds have been used in a wide range of product applications and industries, including wire insulation, electronics, pharmaceuticals, paints and coatings, carpets and upholstery, textiles, personal care products (such as cosmetics, shampoos, lotions, toothpastes, dental floss), adhesives and sealants, pesticides, herbicides, and firefighting foams, creating a legacy of potential use and exposure. While there are thousands of PFAS compounds, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) are two of the more well-known, studied, and increasingly regulated compounds at the federal, state and local levels.

Due to their stability, PFAS compounds persist in the environment and have been found in drinking water, groundwater, air and soil. And because PFAS are ubiquitous, data exists that most Americans have detectable levels of certain PFAS compounds in their blood, suggesting that most Americans have measurable exposure to PFAS. It also has been reported that PFOA and PFOS may cause a variety of health issues, including increased cholesterol levels, changes in liver enzymes, small decreases in infant birth weights, decreased vaccine response in children, increased high blood pressure or pre-eclampsia in pregnant women and increased kidney or testicular cancer. However, many questions remain about the extent of such alleged health effects, and various studies are underway to better evaluate and understand the potential health effects of more and more PFAS compounds.

Litigation focused on PFAS has been ongoing and has increased dramatically in the past few years. Claims have been brought by water utilities, state attorneys general and individuals (including a federal multidistrict litigation in South Carolina). Claims include remediation and natural resource damages costs where PFAS is detected in groundwater, water supplies or soil; diminished property values as a result of stigma or the presence of PFAS; and medical monitoring and personal injury for individuals exposed to PFAS. Manufacturers of PFAS and their products were the initial targets of such litigation.

In addition, the Biden administration launched a PFAS Roadmap to tackle a wide range of PFAS issues, and the EPA also finalized a nationwide monitoring rule for 29 PFAS compounds in drinking water and suggested that new data may indicate that PFOA is a likely carcinogen. This focus, along with some significant verdicts and settlements and the ubiquity of PFAS compounds in our society, have drawn the attention of plaintiffs’ attorneys. As a result, the targets of PFAS litigation are widening exponentially. Already, manufacturers that used PFAS in their products and property owners whose properties have measurable PFAS contamination are subjects of litigation and those numbers will only grow in the next few years.