June 5, 2023
Companies should be bracing for the potential of increased litigation as the Environmental Protection Agency mulls regulations that would limit the amount of chemicals in drinking water, sources tell Agenda.
The EPA proposal comes as directors are eagerly awaiting the adoption of the Securities and Exchange Commission’s climate disclosure rule, which has put greenhouse gas emissions disclosures and reduction plans at the top of boards’ priorities. But with the EPA’s newly proposed regulations, experts say companies could soon be pressed to disclose how they plan to reduce or cut out the use of certain chemicals, as well.
Per- and Polyfluoroalkyl Substances, or PFAS, are man-made chemicals used to make nonstick cookware, water-repellent clothing and firefighting foams, among other products, and feature in the supply chain of everything from cosmetics to semiconductors. According to the EPA, peer-reviewed studies have shown that these chemicals can impact reproductive health by causing decreased fertility, lead to developmental effects in children and increase the risk of prostate, kidney and testicular cancer. They are known as “forever chemicals” because they don’t break down in the body and take thousands of years to break down in the environment.
. . .
The EPA’s proposed limits “would significantly curtail future PFAS contamination compared to current and past regulations,” according to Ted Leopold, co-chair of the complex tort litigation and consumer protection practice at plaintiffs’ law firm Cohen Milstein.
He also said that the limits would make it easier to bring legal claims against companies if they are in violation of the more stringent standards.
“There’s certainly going to be more opportunity in the future for litigation if these companies don’t start meeting the lower threshold standards,” he said by email.
In addition to federal regulatory enforcement, companies could see lawsuits arising from property-related matters and contamination issues, which are also referred to as trespass, according to Leopold. Trespass occurs when contaminated water causes damage to someone’s property.
“There could also be an uptick in mass actions, which are filed by many people alleging their injuries, including cancer and other health issues, as the result of PFAS contamination. This will be a big battleground moving forward as the public becomes more aware of the dangers of PFAS,” he said, adding that chemical manufacturers were aware of certain harms associated with PFAS for decades, which could heighten this risk.