The PFAS Liability Abyss

Some of you may be old enough to remember the movie Wall Street and, if you are,  you might remember that just before Bud is taken into federal custody, Lou says “man looks in the abyss, there's nothing staring back at him. At that moment, man finds his character. And that is what keeps him out of the abyss.”

I can't help thinking about that great line perfectly delivered by Hal Holbrook (who I loved as Albie Duncan in The West Wing) reading about DuPont and others responsible for manufacturing PFAS and products containing PFAS, and the multitude of claims under Federal and State law they face relating to the presence of those PFAS in our environment.

Yesterday South Carolina Federal District Court Judge Richard Gergel approved a settlement between DuPont and others allegedly responsible for “old DuPont's” PFAS liability on the one hand and all but 924 Public Water Systems in the United States on the other hand.  That settlement relates to the presence, or potential presence, of PFAS in drinking water from coast to coast. The DuPont entities will now pay almost 1.2 billion dollars to the Public Water Systems (in amounts as low as $1,000) but still face other types of claims by the settling Public Water Systems, not to mention claims by the nearly 1000 Public Water Systems that opted out of the settlement. Still, the settlement is most certainly good news for DuPont in that it provides some certainty regarding a large number of potential claims relating to its PFAS in drinking water liability.   A separate 12.5 billion dollar settlement between 3M and the same Public Water Systems will likely be approved by Judge Gergel in the next few weeks.

Unfortunately for the DuPont entities, the very day before Judge Gergel approved the Public Water System settlement, a North Carolina State Court Judge granted the State's motion for summary judgment against some of the very same DuPont entities, holding that “new DuPont” and Corteva are liable to the State of North Carolina for contamination from “old DuPont's” Fayetteville Works.

There are many more lawsuits that have been filed by states, municipalities and private parties against the DuPont entities and others for everything from property damage to personal injury to natural resource damages. The related potential liability is unfathomable. Some of those cases are on Judge Gergel's docket as he has been given responsibility for any Federal lawsuits relating to the manufacturing or use of AFFF, aqueous film forming foam, to fight fires. Others are in many other Federal and State courts.

The Defendants in these cases may be finding character but I'm still wondering where they and those responsible for their liabilities are going to find the resources to resolve all these cases.  I'm also thinking that we'd all benefit from material advancements in our Governments' thinking about the nature of a uniform national response to this national challenge.