Five State AGs Write Amicus Letter Concerning Environmental Settlement

Troutman Pepper

[co-author: Stephanie Kozol]*

On August 7, California Attorney General Rob Bonta led a coalition of five state attorneys general (AGs) in filing an amicus letter concerning a proposed class action settlement between DuPont, Chemours, and Corteva, and water providers for $1.18 billion. The AGs contend the settlement amount is far too low given the scope of environmental contamination and health impacts caused by Dupont’s decades-long manufacture and sale of per- and polyfluoroalkyl substances (PFAS) compounds.

Although California, Arizona, the District of Columbia, Pennsylvania, and Wisconsin do not oppose preliminary approval of the amended DuPont settlement agreement, they argue that the $1.185 billion settlement is insufficient to remediate the contamination caused by DuPont, Chemours, and Corteva emitting unlawful levels of PFAS into U.S. water systems. Although PFAS can be found in food packaging, cookware, clothing, carpets, shoes, and other consumer products, the Environmental Protection Agency released a health advisory concerning the use of PFAS chemicals in June.

The five states explain that while the settlement covers all PFAS compounds used in all products, not just PFAS used in AFFF firefighting foams, which are the focus of the MDL litigation, the settlement amount was calculated based only on DuPont’s share of the AFFF market from 2002-2014. This does not account for DuPont’s broader PFAS liability from manufacturing and selling many other PFAS products for decades, citing studies showing that it will cost $47.3 billion to ensure that U.S. waterways comply with the federal maximum contaminant level. While this entire figure cannot be attributed to DuPont, Chemours, and Corteva, the AGs argue that the parties should pay a more significant share of the cost.

Why It Matters

This letter by the coalition of AGs tracks a trend among state AGs taking an interest in private class action settlements. It remains to be seen whether these letters by state AGs have any persuasive effect on courts’ approval of class settlement agreements.

*Senior Government Relations Manager

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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