PFAS Litigation Updates

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The world of PFAS litigation is quickly evolving. As regulatory scrutiny of these compounds increases, so, too, will the body of associated case law. From class actions to multidistrict litigation, this section will regularly highlight developments in PFAS-related litigation.

Content in this section does not reflect the opinion of Alston & Bird or its attorneys.

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Previous Issues

Seventh Circuit Remands PFAS Contamination Suit to State Court

The Seventh Circuit affirmed an Illinois district court order remanding the State of Illinois’s PFAS-contamination lawsuit against 3M back to state court. 3M originally removed the case to federal court based on the federal officer removal statute based on the belief that some of the contamination at issue came from PFAS-containing AFFF that 3M provided to the U.S. Army at the Rock Island Arsenal, which is located just 25 miles downstream from 3M’s Cordova Facility. While the Seventh Circuit acknowledged that 3M might have had a “colorable federal defense” justifying removal because of the “mixed PFAS contamination,” the state “clearly and unequivocally” conceded at oral argument that it would not seek relief for the mixed PFAS contamination, resulting in a lack of jurisdiction for the district court.

August 7, 2024 | Illinois ex rel. Raoul v. 3M Co., No. 23-3031 (7th Cir.).

Third Circuit Dismisses Chemical Company’s Attempt to Invalidate EPA Water Advisory

The Third Circuit dismissed Chemours’s legal challenge to the EPA’s health advisory for the PFAS chemical HFPO-DA. While Chemours argued that the health advisory violated the Administrative Procedure Act and the nondelegation doctrine, the Third Circuit did not reach those conclusions and instead dismissed the action for lack of subject-matter jurisdiction. For the health advisory to be subject to review under the Safe Drinking Water Act, as Chemours argued, the health advisory would have to qualify as a “final action.” And ultimately the Third Circuit reasoned that the health advisory, which is not enforceable and non-regulatory, was not a final action because it did not directly bring about legal consequences or impose requirements or prohibitions.

July 23, 2024 | Chemours Co. FC LLC v. United States EPA, No. 22-2287 (3rd Cir.).

Court Preliminarily Approves $750 Million PFAS Settlement Between Tyco and Water Providers

Johnson Controls subsidiary Tyco Fire Products LP—a manufacturer of AFFF, a firefighting foam that is alleged to contain or degrade into PFAS—agreed to a $750 million settlement to resolve PFAS contamination claims brought by a class of public water systems in the AFFF MDL pending in the District of South Carolina. The district court issued its preliminary approval of the settlement, observing that the proposed settlement agreement was fair, reasonable, and adequate while also overruling a limited number of objections. The court scheduled the final fairness hearing for November 1, and in the meantime, public water systems can opt out of or object to the settlement.

June 11, 2024 | In re Aqueous Film-Forming Foams Products Liability Litigation, No. 2:24-cv-02321 (D.S.C.).

Coca-Cola Defeats PFAS-Related Claims

Coca-Cola won a motion to dismiss claims alleging that the company’s Simply Tropical Juice Drink—which the company advertised as “made simply” with “all-natural ingredients”—was falsely labeled because it purportedly contained PFAS. In granting Coca-Cola’s motion to dismiss for lack of Article III standing, the district court emphasized that, while the plaintiff claimed that he conducted independent testing on a “sample” of the product in July 2022, the plaintiff did not test the product he actually purchased for PFAS. The court also noted that the plaintiff did not allege that the presence of PFAS in the product was so widespread that it was plausible that he purchased a mislabeled product. The district court granted Coca-Cola’s motion, while granting the plaintiff leave to amend to address the pleading deficiencies.

June 10, 2024 | Lurenz v. Coca-Cola Company, No. 7:22-cv-10941 (S.D.N.Y.).

Fourth Circuit Affirms EPA’s Approach to PFAS Testing Under the TSCA

Pursuant to the Toxic Substances Control Act (TSCA), several North Carolina–based citizens groups petitioned the EPA in 2020 to initiate testing of 54 individual PFAS. The EPA responded by agreeing to test seven of the PFAS and to potentially test nine more. The groups viewed this as a denial of their petition and, in 2021, sought judicial review pursuant to a TSCA provision. A North Carolina district court dismissed the groups’ claims for lack of jurisdiction, and the groups appealed. The appeal was resolved when the Fourth Circuit affirmed the district court’s dismissal. The Fourth Circuit held that the EPA’s agreement to test (and potentially test) a subgroup of PFAS constituted a “grant” of the groups’ petition and therefore did not provide the groups with the right to judicial review under the TSCA.

June 10, 2024 | Center for Environmental Health v. EPA, No. 23-1476 (4th Cir.).