States facing mounting costs over the cleanup of “forever chemicals” have directed their attention at chemical manufacturers, with a flurry of lawsuits coming as the companies reach large settlements over similar pollution claims.
In the past two weeks, attorneys general from eight states have filed litigation against chemical manufacturers over per- and polyfluoroalkyl substances (PFAS). The lawsuits allege that PFAS have contaminated drinking water, damaged the environment, and violated state laws related to consumer protection and public nuisance by way of products such as aqueous film-forming foam (AFFF), which has been used in firefighting for decades and contains PFAS.
Arkansas, Pennsylvania, New Mexico, Oregon, Washington, Arizona, Maryland, and Rhode Island have all filed legal complaints since May 25. More than a dozen others had previously announced similar cases.
Many of the eight recent state lawsuits list among defendants DuPont de Nemours Inc., the Chemours Co., Corteva Inc., and 3M Co.—companies that have offered or are reportedly working on billion-dollar-plus settlements in a federal multidistrict AFFF case.
“We’re hitting an inflection point,” said Sarah Doll, national director of Safer States, which tracks PFAS policy nationwide. “The train is moving down the tracks, and either you get out of the way or you’re going to get hit by litigation and accountability.”
The proliferation of PFAS-related settlements in recent years could signal to states that there’s a stream of funding available to help with PFAS testing, monitoring, and cleanup.
“Those who cause the harm should be the ones who front those dollars, not the taxpayers,” Doll said. “That’s what the AGs are leaning into.”
DuPont, along with its spinoffs, Chemours and Corteva, agreed last week to pay nearly $1.2 billion to settle hundreds of municipal pollution claims. The three-company DuPont accord previously set aside $4 billion for PFAS litigation settlements.
3M Co., which produced for years a particular PFAS long used in AFFF, is said to be in talks for its own settlement of at least $10 billion.
The recent and potential settlements “confirm the concerns” raised in Arkansas’ June 5 lawsuit, the state attorney general’s office said. “Defendants need to financially contribute to addressing PFAS found in the state’s lands and natural resources.”
Beyond Drinking Water
Attorneys general are likely trying to avoid being lumped into the ongoing multidistrict litigation, said Jessica Rosell, counsel at Lathrop GPM LLP, who has been following the lawsuits. If states can get their own trials, they don’t have to split settlement dollars with other parties.
“I think they’re betting that it’s a more significant recovery if it’s a separate lawsuit,” she said.
DuPont’s recent settlement likely excludes all the state attorneys general lawsuits, said John Gardella, chair of CMBG3 Law LLC’s PFAS and environmental practice groups.
3M’s settlement is expected to only cover municipal providers of drinking water to consumers, and it would exclude suits by state attorneys general over the pollution of rivers and streams, allegations by the federal government, personal injury and property damage claims, or class actions, Bloomberg News reported.
There are key differences between the state attorneys general lawsuits and the municipal drinking water lawsuits being considered in the first batch of multidistrict litigation, attorneys say.
For one, the drinking water lawsuits are largely driven by common law, while the state cases claim statutory violations related to product liability, public nuisance, failure to warn, and deceptive trade practices, said Emily M. Lamond, an attorney in Cole Schotz PC’s environmental department.
Many of the state lawsuits also extend past the scope of the federal drinking water case, Gardella said. The suits considered in the multidistrict litigation focus on drinking water pollution that allegedly stemmed from firefighting foam. State attorneys general, however, are citing concerns about drinking water, but also groundwater, surface water, land contamination, and more, he said.
Cleanup Costs
Estimating the dollar value of damage in these broader natural resource “monster cases” is far more difficult than estimating the costs of treating water alone, said Michael Walsh, a senior counsel at Clark Hill PLC.
Resources for states are especially important in light of the Environmental Protection Agency’s newly proposed rule to limit PFAS in drinking water, which could be costly for states to implement, Doll said.
Attorneys general from 16 states and Washington D.C. addressed the matter in comments submitted to the EPA on May 30 regarding the proposed limits. “The costs of installing additional treatment technologies should not fall to state and local governments and taxpayers,” the coalition wrote. “As some of our states have alleged in pending lawsuits, certain chemical manufacturers have broken the law in their manufacture, sale and distribution of PFAS and caused much of the contamination in our drinking water supplies.”
Many of the recent state attorneys general’s claims seek both damages and costs for cleanup and other kinds of remediation. In some states, like Washington, expenses to clean up a single contamination site are estimated at $5.3 million to $62.8 million.
A report released June 6 by the Minnesota Pollution Control Agency, for example, found that technologies and expenses needed to remove and destroy PFAS from wastewater streams across the state would cost between $14 billion and $28 billion over 20 years. Minnesota isn’t one of the states to file PFAS litigation in recent weeks, but it has previously sued over the chemicals.
PFAS manufacturers have a history of massive state-level settlements. Since 2018, DuPont and 3M have paid amounts from $50 million in Delaware to $850 million in Minnesota to settle litigation from state attorneys general.
“The fact that these cases have settled, that the numbers are public, is definitely an incentive to pursue those claims,” Rosell said. “The scope of settlements announced through this litigation and through private litigation has been larger” than expected.
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