AGG Litigation attorneys David Marmins and Morgan Harrison were featured in an episode of the Emerging Litigation Podcast offering insight on the complexity of litigating claims and complying with new regulations related to per- and polyfluoroalkyl substances, known as “PFAS” or “forever chemicals.”
After discussing how the experience from AGG’s Environmental and Litigation practice groups have contributed to the firm’s work handling these claims, David and Morgan shared insight on the origin of litigation related to PFAS, which are used in a wide variety of ways for their ability to repel liquids. The chemical makeup of PFAS makes it incredibly persistent, leading to the “forever chemicals” nickname and the fact that PFAS is continuously found in water and, ultimately, the human body, which has caused the rising tide of regulation and litigation related to PFAS.
In addition to the chemical manufacturers that created PFAS and related chemicals, lawsuits alleging the discharge of chemicals into local waterways could potentially target companies using PFAS in the production of items, such as nonstick cookware, cosmetics, food packaging, carpet, and clothing. Further, the lawsuits may target the companies that use these items (e.g., fast food restaurants using packaging with PFAS). Even beyond these companies that opt to use the chemicals for their products, local utility companies are also implicated in PFAS lawsuits for their distribution of contaminated water without a system to filter out the chemicals.
David and Morgan also discussed the types of lawsuits being brought against these entities, as well as how each side has approached their legal arguments to date.
“The other big category of lawsuits you see invoke the Clean Water Act and, in certain cases, state-specific laws and regulations with respect to drinking water standards,” Morgan explained. “As of today, there isn’t an enforceable federal regulation or drinking water standard with respect to PFAS, but that has not stopped plaintiffs from bringing claims for violation of the Clean Water Act.”
Morgan added that plaintiffs are getting more traction in cases involving a state’s drinking water regulations because certain states do have enforceable standards and others are in the process of creating them.
While we have not yet seen major judgments related to PFAS litigation, there have been massive settlements for the major manufacturers of PFAS, like 3M and DuPont, worth more than eight- or nine-figures, which includes monetary commitments to creating systems to better treat water supplies and remove the chemicals. Outside of these creators of PFAS that have profited significantly, liability for most defendants that have used PFAS has not been as high, but the settlements have included consent decrees stating the defendant will not use the chemicals with an additional agreement to allow monitoring to ensure compliance. This monitoring introduces new risk because the “forever” nature of the chemical makes it difficult to completely remove all detectable PFAS from discharge, and new water coming into the building likely contains PFAS.
The conversation concluded with a discussion on new regulations being introduced and how that might create new risk. To date, there has been limited regulation related to PFAS, which has made plaintiffs’ arguments more difficult. However, the onset of new regulations could give more credibility to PFAS claims and introduce new vehicles for litigation related to violating rules that may not exist now.
To listen to the full podcast episode, please click here.
To learn more on the subject, please click here to read David and Morgan’s article published in the Journal of Emerging Issues in Litigation.