January 29, 2023

Volume XIII, Number 29


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Saying EPA's implementation of its PFAS road map is going to "increase legal liability" is like saying seat belts will cause more car accidents!

I was surprised to see a former EPA official opining that identifying two of the hundreds of forever chemicals known collectively as PFAS as "hazardous substances" under Federal law would "increase legal liability".

After all, anyone at all involved with PFAS knows that many states have already identified PFAS as hazardous substances and set infinitesimally small clean up standards for them.

And tens of thousands of PFAS cases are already clogging the Federal and State courts.  You can't turn on your car radio without hearing an invitation from the plaintiffs' bar to add another.

Given these facts it would seem completely uncontroversial that, for PFAS, the legal liability cat is already well out of the bag.

I was sufficiently surprised by what I was reading, especially since EPA was also concerned about PFAS during the prior administration, and the one before that, that I decided to "google" the former EPA official's name.

The first "hit" was a biography on the web page of the Texas Public Policy Foundation.  I recognized that organization as the one that represented several NIMBYs in an effort to halt the Vineyard Wind project that will bring renewable energy to New England.  See Another Day, Another Weaponization of the Courts to Try to Prevent Renewable Energy, https://insights.mintz.com/post/102her6/another-day-another-weaponization-of-the-courts-to-try-to-prevent-renewable-ener. 

The biography says that this "veteran climate and energy strategist and communicator" "spearheaded many of the Trump Administration’s greatest energy and environmental policy achievements" including being "chief architect of the Paris Accord withdrawal and the repeal of the Clean Power Plan."

There's no mention of any expertise about the science of PFAS, or the current tangle resulting from the absence of Federal regulation of these chemicals which are instead being addressed piece meal by the States and the Courts.

Now everyone is entitled to their opinion, and there is plenty of room for legitimate differences of opinion about how best to address the PFAS already in our environment and the PFAS that are on their way to being there.

There is certainly cause for concern that following EPA's aggressive PFAS road map is stretching EPA too thin.  But I'm pretty sure EPA isn't going to be thrown off course by this opinion from this "climate and energy strategist" and that's a good thing.

But Gunasekara finds the Biden administration proposal equally problematic, laying out in her opinion piece general criticisms of the rule and its possible repercussions that are a potential preview of the stance industry may take in comments on the rule and any potential legal challenge. She contends the rule is being rushed, with too many questions remaining. She says the rule will trigger costly and onerous disposal requirements and increase legal liability, with potentially much higher waste management costs that could disproportionately affect low-income households. “With all these projected costs and complications, the rule will do little in terms of actually removing these substances from the environment,” she contends.


©1994-2023 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume XII, Number 312

About this Author

Jeffrey R. Porter, Environmental Attorney, Mintz Levin, Risk Analysis Lawyer

Jeff leads the firm’s Environmental Law Practice. He is also a member of the firm’s Policy Committee. For 23 years, he has advised clients regarding complex environmental regulatory compliance and permitting issues, including issues relating to air and water discharges and hazardous waste storage and disposal. In 2011 and 2012, the firm received the Acquisition International Legal Award for “US Environmental Law Firm of the Year.” The awards celebrate excellence and reward firms, teams and individuals for their contribution to client service, innovation and commitment to quality.