Alaska Becomes Latest to Sue for PFAS Damages

Davis Wright Tremaine LLP

Davis Wright Tremaine LLP

The state of Alaska has thrown its hat into the ring of state and local governments suing designers, manufacturers, and distributors for damages arising from per- and polyfluoroalkyl substance (PFAS) contamination.

On April 7, 2021, Alaska's attorney general filed a lawsuit seeking damages from 3M Company, E.I. DuPont and 30 other named defendants, plus additional unnamed defendants for their roles in the release throughout the state of two specific PFAS compounds, perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA), commonly used in firefighting foams.

The lawsuit asserts a wide range of claims for strict product liability, negligence, nuisance, trespass, and for violation of the Alaska Unfair Trade Practices and Consumer Protection Act (UTPA) arising from the presence of PFOS and PFOA in the state and its natural resources. Alaska's attorney general seeks recovery of past and future costs incurred or to be incurred in the state's response to PFOS and PFOA contamination, including investigation, remediation, disposal, and monitoring costs, as well as triple damages under the UTPA and punitive damages, among other costs and damages.

In filing the lawsuit, Alaska joins a growing list of governments seeking reimbursement of costs and recovery of damages related to PFAS contamination, with parallels to past asbestos and methyl tert-butyl ether (MTBE) litigation. The first such action by a governmental entity was a suit in 2010 brought by Minnesota's attorney general, which sought $5 billion in natural resource damages and resulted in a settlement. A number of other states, local governments, and water authorities have followed suit, with New Hampshire's claim against manufactures, producers, and distributors being one of the first to allege damages from statewide contamination.

While there are parallels to asbestos and MTBE litigation, the regulatory nature of PFAS is still unsettled. And while science supports a link between PFAS and various health effects, there is no signature disease tied to PFAS impacts in the same way there was between mesothelioma and asbestos.

Challenges moving forward with Alaska's case will include questions of causation and questions of what manufacturers knew and when they knew it regarding potential health impacts.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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