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

Court Weighs Scope of ‘Irreparable Harm’ in PFAS Permit Suit

The Southern District of West Virginia is weighing whether ongoing violations of water-quality-based permit limits for PFAS discharge—specifically hexafluoropropylene oxide dimer acid (HFPO-DA)—are sufficient to warrant a preliminary injunction against The Chemours Company. In briefs filed after a May injunction hearing, the West Virginia Rivers Coalition argued Chemours’s allegedly continuing permit violations constitute irreparable harm to the Ohio River and downstream drinking-water sources. Chemours conceded exceeding discharge limits but argued that the plaintiffs must show personal, not just environmental, harm. In a May 27, 2025 order, the court asked the parties to brief whether incremental harm to human health qualifies as irreparable harm for injunctive relief and Article III standing.

May 30, 2025 | West Virginia Rivers Coalition Inc. v. The Chemours Company, No. 2:24-cv-00701 (S.D. W. Va.).

Court Denies Bid to Wipe Baby Wipes Class Action

After previously granting Costco’s motion to dismiss but with leave to amend, a court denied Costco’s latest request to dismiss a putative class action for allegedly selling PFAS-containing baby wipes. In its previous order, the court observed that “PFAS” is “not a magic word that can be invoked to open automatically the doors to federal litigation” and held that the plaintiff failed to identify the specific PFAS in her product, such that the case was subject to dismissal. But this time, the court allowed the putative class action complaint to proceed past the motion to dismiss stage. Unlike in the original complaint, the plaintiff used a “Department of Defense ELAP-certified laboratory” to determine the levels of certain PFAS in baby wipes. The court will not decide the degree to which those levels present an alleged public health hazard nor whether and when to impose liability on manufacturers of particular products in which those chemicals are detected.

May 14, 2025 | Bullard v. Costco Wholesale Corp., No. 3:24-cv-03714 (N.D. Cal.).

Federal Claims Court Tosses PFAS Takings Suit Against Air Force

The U.S. Court of Federal Claims has dismissed a $400 million lawsuit filed by property owners near Cannon Air Force Base in New Mexico who alleged the Air Force’s decades-long use of PFAS-containing firefighting foam amounted to a taking of their property without just compensation. The court cited three “independent yet overlapping” grounds for dismissal. First, it dismissed plaintiffs who are already pursuing similar relief in pending multidistrict litigation over PFAS-containing AFFF before the District of South Carolina, finding their claims barred under 28 U.S.C. § 1500. Second, it found the claims of most remaining plaintiffs unripe because they lacked confirmed PFAS contamination on their property. Third, the court rejected the final claims because they both sounded in tort and otherwise failed to assert a cognizable Fifth Amendment takings claim. The court concluded that the plaintiffs did not plausibly allege government intent to invade their property or any benefit conferred on the government by the alleged contamination.

March 26, 2025 | Schaap v. United States, No. 1:24-cv-01300 (Fed. Cl.).

Fourth Circuit Paves the Way for Defendants to Remove More PFAS Cases to Federal Court (and Transfer Them to the AFFF MDL)

A divided Fourth Circuit panel held that district courts in Maryland and South Carolina erred in remanding certain cases that 3M removed to federal court based on the federal officer removal statute. The states originally sued 3M in state court and expressly disclaimed any liability based on PFAS contamination caused by aqueous film-forming foam (AFFF). 3M removed the cases to federal court under the federal officer removal statute—based on 3M’s manufacture of AFFF for the U.S. military—arguing that the PFAS from 3M’s AFFF “indistinguishably commingled” with the PFAS at issue in the states’ lawsuits. The district courts disagreed and remanded the cases to state court, but the Fourth Circuit vacated those decisions on appeal. The Fourth Circuit refused to “accept the States’ attempts to immunize their complaints from federal officer removal with their purported disclaimers in this case.” Instead, the Fourth Circuit looked to 3M’s “well-pleaded facts of removal” and held that 3M’s removal “holds sufficient water” because the states pleaded PFAS contamination near military bases where 3M alleged that it sold AFFF. This appeal is not yet finished—the Fourth Circuit recently stayed the panel’s decision to consider the states’ petition for rehearing en banc.

March 7, 2025 |Maryland v. 3M Company, No. 24-1218 (4th Cir.); South Carolina v. 3M Company, No. 24-1270 (4th Cir.).

Court Dismisses (Without Prejudice) Environmental Suit Arising from “Wholly Past” PFAS Contamination

The Middle District of Tennessee dismissed a citizen suit involving PFAS chemicals brought by a nonprofit organization under the Clean Water Act and Resource Conservation and Recovery Act. Tennessee Riverkeeper, which claims it is “dedicated to the preservation, protection, and defense of the Tennessee and Cumberland Rivers,” sued a private landfill operator that allegedly contaminated a river with PFAS. The landfill operator moved to dismiss for lack of jurisdiction, arguing that these environmental statutes do not give citizen-plaintiffs standing for “wholly past” violations. The court agreed. Tennessee Riverkeeper had alleged “one instance of a pollutant discharge ten months before filing this lawsuit,” which the court found to be insufficient. The court refused to credit Tennessee Riverkeeper’s conclusory allegations that the violations continued and it also rejected Tennessee Riverkeeper’s argument that the landfill operator’s purported failure to not put in place remedial measures meant that the violations continued.

March 6, 2025 | Tennessee Riverkeeper Inc. v. Waste Connections of Tennessee Inc., No. 3:24-cv-00883 (M.D. Tenn.).