Roberto Leito

ELR Staffer, 3LE (2026)

They’re everywhere: in your cookware, clothes, food, and drinking water. PFAS, classified as “per- and poly-fluoroalkyl substances,” are a group of 15,000 synthetic chemicals that make up non-stick pans, stain and water-resistant clothing, firefighting foam, cosmetics, and plastic food packaging, among many other daily products. PFAS are commonly known as “forever chemicals” because they are nearly impossible to break down. Repeated exposure to PFAS can lead to irreversible buildup in soil, air, water, and even humans and animals. According to epidemiological studies, exposure to certain kinds of PFAS can lead to altered thyroid function, liver disease, kidney disease, reduced fertility, and cancer.

Since their creation in the 1930s, PFAS have persisted in the environment and, as a result, exist in the bloodstreams of ninety-seven percent of Americans. In 2022, the United States Environmental Protection Agency (“EPA”) published new recommendations decreasing the toxicity threshold for two types of PFAS. Although now phased-out, they linger in the environment and can be toxic even at minuscule levels. Companies have since created many more types of PFAS that the EPA does not monitor or test. 

The federal government has taken essential steps to address PFAS, but further action is necessary to prevent their harmful environmental effects.

The EPA has successfully created new regulations to control the introduction of PFAS into the environment. In January, the EPA finalized a rule prohibiting companies from reintroducing 329 PFAS that the Toxic Substances Control Act (TSCA) has formally designated as “inactive.” If a company wants to use any of those 329 PFAS, it must notify the EPA, which notice requires the agency to perform a comprehensive environmental review and risk analysis. In September, it finalized a rule requiring any person or entity that has manufactured PFAS or items containing PFAS in any year since 2011 to report on their uses, disposal, exposures, hazards, and other metrics pursuant to the TSCA. Also under the TSCA, in June 2023 the agency implemented a framework for reviewing the effect of new PFAS, or existing PFAS with new uses, on the environment and public health before entering the market to protect the environment and public health.

The EPA is also working to limit PFAS in water specifically. .  Last April, the agency finalized a rule called the PFAS National Primary Drinking Water Regulation under the Safe Drinking Water Act, which will establish a national drinking water standard for six PFAS. Public water systems will be required to monitor and filter these PFAS to ensure their levels stay within the legally enforceable levels established by the EPA. The agency was also able to secure  an additional $1 billion in funding from President Biden’s Investing in America agenda. Public water systems must complete their initial PFAS monitoring before 2027, and, by 2027, they must conduct consistent monitoring and regularly report their findings. By 2029, these systems must implement PFAS reduction and publicly disclose violations. Compliance with the rule will cost an estimated $1.5 billion annually, divided among public water utility companies.

Also in April, the EPA finalized a rule establishing two PFAS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). CERCLA allows the EPA to speed up environmental cleanups and subjects polluters to strict and joint-and-several liability for cleanup costs. Subjecting more PFAS-producing corporations to CERCLA could be a key avenue for remedying widespread contamination.

In the coming decade, it will be crucial to monitor the effects of the $50 billion President Biden allotted to the EPA for drinking and wastewater improvements through the Bipartisan Infrastructure Law. Between fiscal years 2022 through 2026, the law will award over $1 billion per year to communities nationwide to reduce PFAS contamination in their public water systems.

In the meantime, states have taken  action to stem the harmful effects of PFAS.

Most states have taken some form of action to regulate PFAS. Thirty states have already adopted 154 anti-PFAS policies. Eleven of those states—including New York, New Jersey, and Massachusetts—have established enforceable drinking water standards for PFAS. As of May 2024, Maine, Minnesota, and Washington are the only states to have enacted broad PFAS bans, with phase-out years ranging from 2025 to 2032. Twelve states have issued guidelines and health advisories for PFAS in drinking water. So far in 2024, thirty-three states have considered at least 227 bills to regulate PFAS.

States have also used litigation to control PFAS. Approximately thirty state attorneys general have sued PFAS manufacturers for contaminating drinking water and farmland. On January 23, 2024, Connecticut filed two state court lawsuits  against twenty-eight PFAS manufacturers for knowingly contaminating Connecticut’s natural resources. Connecticut claimed public nuisance, trespass, negligence, and violation several state environmental laws, including the Connecticut Enviornmental Protection Act. Accordingly, Connecticut  seeks punitive and compensatory damages, along with injunctive relief. In June 2023, New Jersey accepted a settlement agreement from an in-state chemical company for $393 million. In November 2023, Ohio obtained a $110 million settlement.

Cities and towns have also filed suit to force corporations to take responsibility for costly PFAS cleanup and monitoring efforts.

Local municipalities are coming after big PFAS-producing companies. After a federal court approved the settlement in April, chemical manufacturer 3M will have to pay between $10.5 and $12.5 billion over thirteen years to resolve some of the 5,000 lawsuits against it, all alleging the company knowingly contaminated natural resources with PFAS. Over 5,000 systems were harmed and will receive the funds for remediation. Still, the final settlement amount will depend on the levels of PFAS in as many as 7,000 eligible, untested public water systems. In sum, PFAS litigation will likely cost 3M over $140 million. 3M has decided to end all PFAS use and manufacturing by the end of 2025, while DuPont and its subsidiaries, Chemours and Corteva, agreed to set up a $1.19 billion fund to test for and remove PFAS from drinking water systems nationwide.

The 3M and DuPont cases were consolidated with Judge Richard Gergel of the United States District Court for the District of South Carolina as part of multidistrict litigation (“MDL”). MDL is a legal proceeding used to consolidate similar mass tort litigation cases in one court to facilitate judicially consistency and efficiency. The 3M and DuPont litigation is divided into three categories of claims: personal injury, those filed by state attorneys general for damages, and public water suppliers. However, the above MDL settlements from 3M and Dupont do not resolve claims from the former two categories. Most of the personal injury claims stem from firefighting aqueous film-forming foams (AFFFs), which allegedly leached into water supplies and caused harm at airports, military bases, and other sites.

Even smaller groups and individuals are litigating to combat PFAS. In June, the Uniformed Professional Fire Fighters Association of Connecticut, joined by some firefighter unions and individuals, filed a lawsuit in the U.S. District Court for the District of Connecticut against 3M, DuPont, and other corporations. The plaintiffs claim that PFAS in their equipment leached into their skin, causing cellular changes that made them susceptible to adverse health conditions. They seek $5 million in damages.

What does the future look like?

But litigation cannot do it all–further legal and administrative actions are needed in the fight against PFAS pollution. With well over 6,400 PFAS-related lawsuits filed since 2005, litigation will likely increase this year as PFAS-producing facilities conduct testing and states promulgate additional laws and regulations. Even companies that unknowingly use PFAS in their products may face liability.
The cost of regulating PFAS is steep. The estimated costs for a national PFAS cleanup in drinking water could range between $120 and $175 billion. Responsible corporations should bear most, if not all, of this cost. Class action litigation puts these corporations in the spotlight and levels the playing field for those harmed. With increased public awareness, we must petition our states and agencies, like the EPA, to maintain a hardline approach against PFAS and those that carelessly introduced these forever chemicals into our environment.