Merely Manufacturing PFAS Isn't Enough (Yet) to Make You Responsible for Cleaning Them Up

This morning we have a seventy five page decision by a Federal District Court Judge in New York dismissing a lawsuit by a water supplier against the nation's most well-known manufacturer of PFAS to recover the costs of treating PFAS-tainted water.

You could teach an entire semester of environmental law around the decision which is one of the most thorough, well reasoned, trial court decisions I have ever read.

The decision tackles issues of personal jurisdiction, successor liability, and every common law theory of liability potentially applicable to groundwater contamination.

Along the way the Judge concludes that manufacturing PFAS isn't like including MTBE in gasoline, the latter of which has, in New York and other places, been determined sufficient to incur liability for MTBE contamination of groundwater in the place where the MTBE-containing gasoline was sold.

At least one other Judge has reached the opposite conclusion about PFAS.  I think it is too early to say what the majority answer will be.

On the other hand, according to the Judge, merely selling PFAS in New York is sufficient for a New York Court to have jurisdiction over you.   

The Judge gave the water supplier a month to amend its complaint.  In doing so, the Judge specifically alluded to the possibility of a "market share" claim against the PFAS manufacturer.  Some states allow such claims.  This theory of liability didn't make sense to me in law school and it still doesn't make sense to me today.  Under a market share theory of liability, you don't need to prove that you were harmed by a particular defendant.  Defendants are liable to you according to their percentage of the total sales of the harmful thing.   We'll see the extent to which the market share theory is applied to PFAS contamination of groundwater in the states that recognize the theory.

In the meantime, PFAS continue to be manufactured, they continue to be widely used, they continue to enter our environment, and we seem to be heading down a road toward the conclusion that they're needing to be remediated when present in barely detectable amounts.  That's going to mean a lot more cases like this one.