CINCINNATI, Ohio – In a major win for manufacturers of toxic βforever chemicals,β the 6th U.S. Circuit Court of Appeals on Tuesday overturned a lower court ruling that would have allowed a sweeping class action lawsuit against chemical giants 3M, DuPont, and Corteva. The lawsuit sought damages on behalf of 11.8 million Ohio residents for contamination of drinking water by PFAS chemicals across the state.
What are PFAS?
Per- and polyfluoroalkyl substances (PFAS) are a large group of widely used manmade chemicals known for their non-stick and waterproof properties. Commonly used in products like non-stick pans, food packaging, clothing, carpets, and firefighting foam, PFAS are extremely persistent in the environment and human body, earning them the nickname βforever chemicals.β
Health and Environmental Impacts
Studies have linked certain PFAS compounds to cancer, liver damage, thyroid disease, decreased fertility, and other serious health problems. The chemicals easily migrate into soil and water from sites where they are manufactured or used, contributing to widespread drinking water contamination.
Due to health risks, the U.S. Environmental Protection Agency (EPA) has taken steps to regulate PFAS under the Safe Drinking Water Act and is working to designate two of the most common compounds, PFOA and PFOS, as hazardous substances under federal cleanup law.
Details of the Mass Ohio Lawsuit
In January 2020, judge Matthew McFarland of Ohio’s Southern District Court granted class action status to a lawsuit filed by plaintiff Kevin Hardwick against 3M, DuPont and Corteva.
Hardwick claimed the companies knew PFAS were toxic but continued to produce and sell them without appropriate warnings or safeguards.
The class action ruling meant 11.8 million Ohio residents impacted by PFAS water contamination could potentially join the lawsuit and seek damages. 3M, DuPont and Corteva immediately appealed the class certification.
Why the Appeals Court Overturned It
In Tuesday’s ruling, the three-judge 6th Circuit Appeals Court panel overturned McFarland’s decision, saying the class proposed by Hardwick was “overly broad.” Writing for the unanimous panel, judge Helene White said Hardwick “cannot trace his exposure in his drinking water specifically to [the companies’] actions.”
The appeals court took issue with making such a sweeping class action when PFAS is so widespread in the environment from many sources. They instructed the lower court to dismiss the statewide class action.
Response to the Ruling
In a statement, 3M said it was pleased by what it called a “well-reasoned opinion” that overturned an “unsustainable case that was not supported by the facts and governing law.” A spokesperson emphasized 3M acted responsibly in connection with products containing PFAS and will continue to “vigorously defend our environmental stewardship.” Other legal experts expect more targeted PFAS lawsuits against manufacturers to continue moving forward in courts across the U.S.
Broader PFAS Regulation and Lawsuits
Over 220 million Americans could have PFAS in their drinking water at levels that outweigh EPA health thresholds, per recent studies.
Spurred by rising public concern and evidence the chemicals are more dangerous than previously thought, the EPA has implemented new reporting rules for PFAS releases and set stringent drinking water health advisories for PFOA and PFOS.
Several states have established or proposed their own PFAS limits and reporting requirements that go beyond federal regulations.
The EPA is also attempting to designate PFOA and PFOS as hazardous substances under federal cleanup law CERCLA. This would force polluters to pay for remediation of contaminated sites. Unsurprisingly, chemical manufacturers vigorously oppose the action. Industry groups argue insufficient evidence exists that PFOA and PFOS pose unreasonable risk to human health.
Hundreds of lawsuits related to PFAS pollution have already been filed across dozens of states. Cases have been brought against chemical makers as well as the U.S. military, airports, and local fire departments for PFAS releases into the environment.
Several settlements have been paid out by 3M and DuPont, while many more suits wind their way through courts. The appeals court rejection of a class action in Ohio was a major victory for chemical companies facing substantial liability nationwide for decades of PFAS manufacturing and sale.
Ongoing Investigations
Even as 3M, DuPont and Corteva celebrate the latest ruling, U.S. congressional committees and federal agencies continue to investigate whether manufacturers covered up damning health data on PFAS years ago.
There are also inquiries into industry efforts to avoid stricter regulation even as pollution continued unabated.
New evidence could strengthen future litigation aiming to hold PFAS makers financially accountable for unchecked pollution. Until then, the toxic chemicals will remain virtually ubiquitous in water supplies across Ohio and the entire United States.