On November 10, 2022, California’s Attorney general filed a lawsuit against over a dozen companies seeking damages for PFAS pollution to the environment throughout the state. While the Complaint seeks damages from pollution related to only seven of the thousands of PFAS – in this case, PFOA, PFOS, PFBS, PFHxS, PFHxA, PFHpA, and PFNA – the damages alleged are nevertheless likely to be in the hundreds of millions for remediation. The California PFAS lawsuit will be closely watched by states who are contemplating suing for PFAS remediation and companies who either manufactured PFAS or utilized PFAS as part of their manufacturing process. While the lawsuit targets a narrowly tailored set of companies, lawsuits in other states have already demonstrated that downstream commerce corporations are at risk of being involved in lawsuits seeking hundreds of millions of dollars.

California PFAS Lawsuit

The lawsuit targets three distinct groups of companies – (1) PFAS manufacturers; (2) PFAS distributors and (3) aqueous film forming foam (AFFF) manufacturers and suppliers. Several theories of liability are asserted, including public nuisance, strict liability, unlawful business practices, negligence per se and fraudulent transfer. The damages sought by the Attorney General include costs associated with the state’s past, present and future efforts to tackle PFAS environmental pollution. The future costs would include investigative costs to determine the full scope of the pollution, remediation costs, proper disposal of PFAS-contaminated water and solids, and monitoring for future pollution.

Implications For Downstream Manufacturers

While the California PFAS lawsuit targets PFAS manufacturers and AFFF manufacturers, companies should not dismiss the lawsuit as an event unlikely to impact them in any way. On the contrary, in other states, including California itself, companies have been directly named as defendants in lawsuits seeking billions of dollars in PFAS remediation costs. Corporations should not ignore the pollution and environmental contamination issues that PFAS pose, as states, federal and state regulatory agencies, and even private citizens are actively seeking damages from companies that they believe placed PFAS into the environment. All companies of all types would be well advised to conduct a complete compliance audit to best understand areas of concern for PFAS liability issues, and ways to mitigate PFAS concerns.