2024: US military says it is immune to dozens of PFAS lawsuits

[pfpcnews]

US military says it is immune to dozens of PFAS lawsuits

Reuters - Feb. 27, 2024

By Clark Mindock

The United States government has asked a federal judge to dismiss more than two dozen lawsuits filed against it for allegedly contaminating water and soil at hundreds of sites near military bases and facilities across the country with toxic “forever chemicals.”

The U.S. told a federal judge in Charleston, South Carolina, late Monday that it is immune to the lawsuits filed by state and local governments, businesses and property owners who say the U.S. military is liable for property and environmental damage caused by its use of firefighting foams containing per- and polyfluoroalkyl substances, or PFAS.

PFAS are used in hundreds of consumer and commercial products including the firefighting foams, non-stick pans, stain-resistant clothing and cosmetics, and have been linked to cancer and hormonal dysfunction. The military has used PFAS-containing firefighting foams since the 1970s for things like firefighting training.

The chemicals are often referred to as forever chemicals because they do not easily break down in nature or in the human body.

The 27 lawsuits were filed in the past six years against the U.S. government by states including New Mexico, New York and Washington, cities, private property owners and local businesses near military facilities where firefighting foams were used.

The plaintiffs say they are seeking potentially hundreds of billions of dollars in damages to pay for groundwater and soil remediation near military sites across the country. Some businesses among the plaintiffs, including a dairy that claims PFAS-contaminated water caused its cattle to die and a property owner whose blueberry cropland was allegedly damaged by the chemicals, are also seeking punitive damages.

The government said it was immune to the lawsuits under a provision of the Federal Tort Claims Act that protects it from tort liability for the discretionary acts of government employees. That law allows plaintiffs to sue the U.S. government for damages only if the government violates specific, mandatory policies.

In its motions to dismiss, the government said the plaintiffs have not identified specific PFAS handling regulations or restrictions that were violated, and that military policy actually encouraged the use of the firefighting foams that contained PFAS for decades since it is very effective at extinguishing jet fuel fires.

Paul Napoli, an attorney representing the plaintiffs, called the arguments “misguided” on Tuesday and said environmental stewardship and accountability “must prevail over legal technicalities” that will prolong suffering and environmental degradation near the contaminated sites.

Napoli said there are specific policies at individual bases or military sites the plaintiffs believe were violated, which would undermine the government's exemption claims.

The lawsuits against the U.S. government are among thousands of cases related to PFAS firefighting foams that have been consolidated in multidistrict litigation in South Carolina federal court since 2018.

Other cases seek damages from PFAS manufacturers or distributors for property, environmental or health harms.

Last year, the sprawling litigation led to two landmark settlements between U.S. water systems and major chemical companies including 3M, DuPont de Nemours, Chemours and Corteva worth more than $11 billion for cleanup of U.S. drinking water supplies.

The case is In re: Aqueous Film-Forming Foams Products Liability Litigation, U.S. District Court for the District of South Carolina, No. 2:18-mn-02873.
For the plaintiffs: Paul Napoli of Napoli Shkolnik; Michael London of Douglas & London; and Scott Summy of Baron & Budd
For the U.S.: J. Patrick Glynn and Christina Falk of the U.S. Department of Justice

SOURCE:
https://www.reuters.com/legal/governmen ... 024-02-27/