In what has been earmarked as the largest government enforcement PFAS action to date, California’s attorney general last month filed an historic lawsuit against more than a dozen per-and polyfluoroalkyl substance (PFAS) manufacturers – as well as “John Doe” PFAS manufacturers – seeking equitable and financial relief for purported statewide pollution to the environment and harm its residents.
While there are thousands of PFAS compounds subject to scrutiny, the California AG’s lawsuit seeks damages related to only seven of the more commonly known compounds: PFOA, PFOS, PFHxA, PFHpA, and PFNA. However, don’t be fooled; narrowing the focus to only seven PFAS is not necessarily a merciful measure, for the state’s alleged damages – namely costs associated with the state’s past, present, and future efforts to combat environmental PFAS pollution – are estimated to be in the hundreds of millions of dollars.
On behalf of the People of California, the lawsuit names three distinct types of defendants: PFAS manufacturers, PFAS distributors, and aqueous film-forming foam (AFFF) manufacturers and suppliers. While the AG’s late November filing sent shockwaves throughout the Golden State, the threat of other states filing “Me Too” lawsuits, similarly targeting PFAS manufacturers and those companies that utilized PFAS in their manufacturing processes, as well as downstream commerce corporations that will cost millions of dollars, has stakeholders’ and insurance carriers’ alarm bells sounding — and for good cause.
The California state action posits several theories of liability, including but not limited to negligence per se, unlawful business practices, fraudulent transfer, strict liability, failure to warn, and most notably, public nuisance. Imitation is said to be the highest form of flattery; indeed, in a nod to other AGs and local governments which rather successfully used novel public nuisance theories of liability as their secret weapon in opioid class actions against manufacturers, distributors, and pharmacies nationwide, the California AG is similarly targeting PFAS manufacturers and distributors, in addition to those companies that utilized PFAS in their manufacturing processes. Quite deliberately, in casting the PFAS state action under public nuisance law, the California AG hopes to circumvent the onus of establishing individual fault. Tactically, akin to the opioid lawyers’ playbook, the California AG’s PFAS lawsuit does not provide specific factual allegations of tortious conduct, such as specific orders shipped from a distributor, but rather, launches a wholesale campaign to cast blame on the entire PFAS industry.
This strategy has nothing to do with public nuisance liability per se. Rather, public nuisance theory leveraged in this fashion is meant to solely enrage the public against the PFAS manufacturing and distribution industry and ultimately spur courts to act.
Claiming that defendants knew the PFAS chemicals — commonly coined “forever chemicals” because of their bio-durability in soil, groundwater, and in the human body — were harmful but nonetheless, knowingly placed them into the market and hence, environment, with insufficient testing, the California AG contends that PFAS released into the state’s drinking water sources, bays, lakes, and streams via fire-fighting foams and found in a wide variety of industrial processes and consumer products, (including food packaging, cosmetics, cookware, fabrics, and cleaning products), can now be found in the bloodstream of nearly every Californian.
Relying on toxicology studies, in vitro studies, and sparse human epidemiologic evidence, the AG claims that exposure to PFAS through oral ingestion contributes to certain cancers, reduced bone density, adverse pregnancy outcomes, developmental delays, infertility, and other serious health harms. The California AG is seeking both equitable and financial relief, including (pursuant to its public nuisance cause of action), an injunction against further sales of products containing certain PFAS compounds. Future damages seek to recoup the costs of cleaning up PFAS in contaminated soil and water, including investigative costs, remediation costs, and the cost of disposal, in addition to monitoring for residual or ongoing pollution statewide.
Although the California AG’s action relies heavily on the state’s unique Prop 65 listing of PFOA and PFOS as chemicals known to cause reproductive toxicity, an aggressive tact that no other state has taken to date, with EPA enforceable limits on PFAS looming, PFAS manufacturers and distributors, as well as AFFF manufacturers and suppliers, should nevertheless be on the lookout for similar state actions based on the ubiquitous nature of the forever chemicals and the ambitious claims of the Golden State’s newest PFAS litigation. All companies would be wise to audit their supply chains, marketing protocols, manufacturing processes, and distribution channels to identify any potential areas of concern for PFAS liability issues beyond California.