MADISON, Wis. — In late January, Wisconsin Gov. Tony Evers announced his administration would start pursuing legal action against companies responsible for PFAS contamination. The legal road towards implementing consequences to the polluters of the set of chemicals isn't clear.
The Wisconsin PFAS action plan released by a task force in his office had listed legal action against companies responsible for PFAS discharges as one of its many steps to minimize the chemical's impact on the state.
However, there aren't federal rules for regulating PFAS yet. Steph Tai, a law professor at the University of Wisconsin-Madison, said that could make the legal road more challenging for the state.
“They're going to have to use other tools besides federal tools,” Tai said.
Tai said there are common law rules that each state follows based on an inherited system of law.
“These are tools like nuisance suits, trespass suits, things like that, that are available in every state and applied by state laws,” Tai said.
Recently in Wisconsin, residents of the Town of Peshtigo reached a settlement with TYCO and their parent company Johnson Controls over PFAS well contamination associated with the company's fire technology training center.
Tai said settlements like that won't set legal precedent. However, they could be used when it comes time for other suits to settle, or when a judgement is needed on a punishment in a similar case.
“It can be a litigation strategy to say, hey look there's a settlement in this case, we're willing to settle for a similar sort of amount if you compensate the people who have been harmed by it, and that can be a strategy that is taken by a state,” Tai said.
PFAS (per- and polyfluoroalkyl substances) are commonly used in things like firefighting foam, paper wrappings, nonstick pans, some fabrics, among other things. They also are often referred to as “forever chemicals” because they don't really break down in the environment.
They move around easily in the environment through waterways and the atmosphere. If digested at high levels through water or food like fish, the chemicals can cause harmful health complications in humans like kidney disease, some cancers, and developmental problems in fetuses and infants.
Wisconsin Manufacturers and Commerce said the announcement from Evers was a political stunt and meant to disparage Wisconsin employers regardless of if there is a health risk.
“They want to sue businesses for the past use of compounds for which no standards have been set under either state or federal law,” said WMC President & CEO Kurt Bauer in a press release.
Bauer said Wisconsin businesses have already been working with lawmakers to mitigate PFAS risk. He pointed to legislation passed last year that prohibits use of firefighting foam with PFAS in it for training purposes.
“Today’s action doesn’t recognize the sincere attempts by businesses to collaborate with governmental entities on the complexity of PFAS-related issues,” Bauer said.
Conversely, environmental groups like Clean Wisconsin applauded the announcement. Saying current restrictions on PFAS barely do anything.
“Ultimately there haven't been any meaningful policies implemented yet, so this really gets at to the core of what communities are dealing with and what they're asking for,” said Carly Michiels, Clean Wisconsin's government affairs director.
Michiels said Wisconsin needs to catch up to neighbors like Minnesota and Michigan when it comes to protecting waterways from contaminants and enforcing environmental rules.
“There is sort of responsibility that needs to be placed on some of these polluters to remove these contaminants from our waterways now,” Michiels said.
Michiels said environmental contamination has a disproportionate impact on communities of color. A study from the Union of Concerned Scientists supports that claim.
Their data shows that low-income communities are 15% more likely to live within five miles of a PFAS contamination site and people of color are 22% more likely. Tai said that could add legal fuel to holding businesses accountable.
“That suggests that there is some kind of justice angle to PFAS contamination and PFAS exposure,” Tai said.
Tai said newly-elected President Joe Biden has been taking steps towards environmental justice with executive orders.
“If it's followed through we might see a shift in terms of federal enforcement strategy, federal rule-making strategy, federal permit review strategy,” Tai said.
Tai also said if Biden's administration promulgates rules around the environmental strategy then it becomes more difficult for subsequent administrations to roll them back.
“If the Biden Administration does the work to promulgate a regulation and it sticks then a subsequent administration will have to do the work to un-promulgate it basically,” Tai said.
The Evers administration plans to hire an outside law firm to pursue consequences for contaminators. In his press release, Evers did not address why he would hire an outside law firm rather than use the State Department of Justice in his announcement. However, lame duck laws passed before Evers took office requires the Department of Justice to get approval for settlements from the legislature.