Forever is a very long time, and scientific advances are beginning to make the phrase obsolete.
Per- and polyfluoroalkyl compounds (PFAS) have proved useful precisely because of the properties which make them difficult to destroy once created. Scientific understanding of environmental persistence and pervasiveness of PFAS, and any associated health effects, continues to develop. As research has continued on PFAS, state and federal governments have, in recent years, taken a more active role in the regulation of PFAS compounds. This activity led USEPA to produce its 2019 PFAS Action Plan, its 2021 PFAS Strategic Roadmap, a host of regulatory advisories and initiatives, and most recently, proposing to designate PFOA and PFOS as Hazardous Substances under CERCLA. The significance of a Hazardous Substance designation for PFOA and PFOS cannot be understated; and will change the remediation standards at contaminated sites, lead to reopeners at long-time closed sites, and will likely mean that the words “hazardous substance” will show up alongside “forever chemicals” in Plaintiff’s toxic tort complaints across the country. Developing alongside these regulations and the understanding of PFAS health effects is a parallel and equally important story of innovation. Recent scientific publications suggest “Forever Chemicals” should be excised from the courtroom vocabulary of legal practitioners and their experts.
However, “forever chemicals,” that sticky phrase, seems to have struck a chord lately in the popular discourse. Once used to refer to PCBs, the phrase had faded from the public eye until recently, according to Google Analytics. USEPA’s February 2019 publication of their PFAS action plan, coupled with a contemporaneous Washington Post op-ed, coincides with an uptick from obscurity to regular engagement with the phrase on the ubiquitous search engine. In recent weeks, “Forever Chemicals” searches appear to be shooting up, with engagement in August of 2022 reaching new highs. USEPA’s continued steps toward a regulatory framework for PFAS (“Strategic Roadmap”; “Drinking Water Health Advisory”; “Hazardous Substance Designation”) have likely contributed to this increase in public awareness, along with the often-recursive cycle of increased media and public engagement.
Against that backdrop, attorneys advancing a PFAS exposure claim may arrive at trial with a messaging advantage, even in the absence of evidence showing elevated levels of PFAS exposure. Some fraction of jurors will no doubt have already heard, scrolled past, or otherwise had some prior experience with the phrase in their daily life by the time they reach the courthouse. Some portion of the expert testimony may include opinions that not only are these compounds potentially harmful to human health, including the plaintiff’s, but they are also a threat to all because they are pervasive and impossible to remove from our water supply, our food, and the built environment. This narrative ticks all of the “reptile tactics” boxes, inviting the jury to go beyond the facts of the case.
Defendants will argue that referring to these chemicals in this way is an attempt to inflame the jury and should be excluded alone. But, the increasing prevalence of the phrase in reference to PFAS may make life more difficult for defendants attempting to exclude it from the courtroom.
PFAS compounds can be stubbornly resistant to neutralization through commonly available hazardous material disposal methods such as incineration. However, thanks to continued scientific efforts to find ways to close the PFAS life-cycle circle, defendants facing this litigation can now argue more effectively that not only is “Forever Chemicals” a reductive, inflammatory phrase that is unhelpful to the jury, but this characterization of PFAS is also out of date. This recent publication by scientists at Northwestern indicates that a relatively low-cost, effective method for destroying captured PFAS may be on the horizon. They have shown that for several classes of PFAS, the tenacious carbon-fluorine bond can be broken, and the remaining benign reaction products can be safely disposed of without exotic materials or energy-intensive heat requirements.
Prevention remains orders of magnitude more potent than cure. Defendants should be cautious not to overplay the upsides of this positive development because the health effects of these compounds as they exist in the environment today are still far from perfectly understood, and this study does not mean the end of PFAS litigation on any foreseeable horizon. For instance, the study does not describe such a simple method for removing PFAS from the human body. Nor does it play any role in reducing the potential health effects of a particular PFAS compound.
What it does instead is underscore the truth; nothing lasts forever, and with some work, the label “Forever Chemicals” won’t either.
