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PFAS Litigation Expected to Continue to Grow and Evolve in 2025
2025 is expected to bring continued PFAS litigation across the country, marked by both increasing complexity as the science continues to develop and by evolving legal strategies based on the continued development of the case law and a potential if not likely shift in the regulatory landscape under the new Trump administration.
This past year saw many of the largest cases in the AFFF firefighting foam multi-district litigation (MDL) in federal court in South Carolina resolve through multi-billion-dollar settlements by PFAS manufacturers. But there is no shortage of cases that remain pending before the MDL– as of this writing, there remain over 7,000 – or in other federal and state courts across the country. And unlike the infancy of PFAS litigation, the cases are no longer limited to PFAS manufacturers but also extend to those that use PFAS-containing products. One case that PFAS practitioners are closely following is a pending appeal in the Fourth Circuit, in which 3M is challenging the remand of lawsuits filed by Maryland and South Carolina to state court on the grounds that the federal officer removal statute applies because 3M supplied AFFF to the U.S. military. In August, the Seventh Circuit rejected this argument in a case where the State of Illinois excluded AFFF from its claims against 3M. This and other decisions like it have led some plaintiffs to plead their cases to likewise expressly disclaim relief for contamination or injury related to AFFF to avoid an assignment to the federal MDL. Because the Fourth Circuit is where the MDL itself sits, the pending decision an important one to watch.
In addition to cost recovery cases being filed by state and local governments, we are continuing to see consumer class actions involving the PFAS content of many commonly used consumer products, the latest of which include smartwatch bands and candy wrappers, as well as personal injury litigation, which is expected to grow as the list of such products expands. And of course, this year is expected to be a significant one for federal rulemaking challenges, including EPA’s April 2024 establishment of new drinking water limits for PFAS and the addition of PFOA and PFOS to the list of hazardous substances under CERCLA. It is inherently difficult to predict how the pending federal rulemaking challenges will be resolved given the demise of Chevron deference to agency actions, or how and to what extent the Trump administration will pursue a roll back of the Biden administration’s PFAS regulatory efforts. That said, it is all but certain that PFAS tort litigation is here to stay.
