California-led coalition takes legal action against 3M’s deal with PFAS-polluted water providers

A California-led coalition of 22 U.S. states and territories is taking bipartisan legal action against a recently proposed settlement between the company 3M and water utilities affected by “forever chemicals” — arguing that the deal would shift accountability from the polluter to the providers. 

The group of attorneys general from across the country filed a motion to intervene and a document of opposition to a federal district court on Wednesday, voicing their disagreement with a tentative class action settlement announced by the parties last month. 

3M had offered up to $10.3 billion in present-day dollars to eligible public water suppliers over 13 years, with the caveat that the deal “is not an admission of liability.” The settlement would apply to providers that have already detected chemicals belonging to a group known as PFAS, as well as those that might do so in the future. 

“PFAS can cause serious health impacts — including various forms of cancers, developmental defects, infertility, diabetes and liver damage — and have been frequently detected in water systems nationwide,” California Attorney General Rob Bonta said in a statement. 

“As a result, the stakes could not be higher,” added Bonta, who spearheaded the coalition of attorneys general in filing the motion. 

Known for their ability to persist in the body and in the environment, so-called forever chemicals have been produced and discharged by industry for decades and are found in certain types of firefighting foam and a variety of household products. 

There are thousands of types of PFAS — which stand for per- and polyfluoroalkyl substances — many of which have long been manufactured by 3M and other companies, such as DuPont. 

The settlement in question pertains to multi-district litigation that consolidated thousands of cases against the manufacturers of PFAS-laden firefighting foam — called aqueous film form foam (AFFF) — before a federal judge in South Carolina. AFFF is used to fight fuel-based fires at military bases, civilian airports and industrial sites. 

Joining Bonta in the motion to intervene is a bipartisan group of attorneys-general from Arizona, California, Colorado, Connecticut, Hawaii, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, the Northern Mariana Islands, Pennsylvania, Puerto Rico, Rhode Island, Tennessee, Texas, Vermont, Wisconsin and Washington, D.C.

Bonta and his colleagues stressed that the proposed settlement would require water providers to withdraw the hundreds of lawsuits they have filed against 3M over its use of PFAS. 

The tentative deal, they explained, would apply to almost every public water provider, including those that have not yet filed suit and those that have not yet assessed PFAS levels in their water supplies. 

The coalition also expressed concern that individual water providers would be bound by the settlement unless they take proactive measures to opt out, regardless of whether they have sued 3M or tested for PFAS. 

This stipulation would mean that utilities would need to make a decision without knowing how much money they could receive and before clarifying the extent of the contamination in their supply and the cost of remediating it, according to the coalition.

The attorneys-general also expressed alarm at the inclusion of an indemnification clause, which they said could shift the liability from 3M to those water suppliers bound by the settlement because they neglected to proactively opt out. 

“The indemnity provision could be read to require public water systems to indemnify 3M against any damages awarded in any litigation that in any way concerns class member public water systems, rendering the settlement amount illusory due to the uncapped nature of the indemnity,” the text of the motion states. 

For example, if a cluster of cancer patients in a PFAS-polluted population decided to sue 3M, the company could then potentially seek compensation from local water providers for any amount it ended up owing the claimants, Bonta and his colleagues explained. 

This workaround could mean that 3M’s $10.3 billion commitment — or about $10.5 billion to $12.5 billion in future dollars — might amount to far less, the coalition members warned. 

At the time of the June settlement announcement, 3M Chairman and CEO Mike Roman described the deal as “an important step forward” and highlighted the company’s plans to stop producing PFAS by the end of 2025. 

3M and the water providers had reached an agreement just as they were slated to go to trial, which was ultimately postponed. Separately, DuPont, Chemours and Corteva also reached a tentative agreement with the water suppliers on the terms of a nearly $1.2 billion settlement. 

In response to the filing of the motion on Wednesday, Sean Lynch, a spokesperson for 3M, said in a written statement that the company’s “agreement supports PFAS remediation funding to public water systems that detect any type of PFAS, at any level, now or in the future.” 

“This agreement will benefit U.S.-based public water systems nationwide that provide drinking water to a vast majority of Americans,” Lynch added, noting that objections regarding major settlements are not unusual and that 3M would work to address any related questions.

If the settlement between 3M and the water providers does move forward, the multidistrict litigation is far from over, as it also includes municipal property owners, personal injury claimants and medical monitoring cases for individuals exposed to PFAS but not yet ill. 

Because multidistrict litigation involves such a massive number of filings, the judge needs to select “bellwether” cases that are representative of their category at each step of the way. 

The water provider cases need to be solved first, as a method of “cutting the cancer off at the earliest stages possible,” Paul Napoli, co-lead counsel for the plaintiffs, told The Hill at the time. Napoli had said that he and his team are now choosing bellwether personal injury cases, which he expects would go to trial in summer or fall of 2024. 

Following the filing on Wednesday, Napoli said in a written statement that the motion to intervene constitutes “clear overreaching” by the states “to involve themselves in a settlement that undeniably excludes them while preserving their rights.” 

“Water treatment utilizes fear that the states are trying to hijack the settlement to take monies for themselves that are there to provide clean drinking water,” Napoli continued. 

“We have seen this story before in the tobacco litigation where monies never made it to the those who needed it and instead ended up in the state general fund only to be squandered for other purposes,” the attorney added. 

Bonta, who also filed a lawsuit against 20 PFAS producers last fall, stressed that he moved to block the current settlement proposal because he sees it as a threat to California’s interests.  

He is also continuing to “vigorously prosecute” his November 2022 case, which accuses the manufacturers — including 3M — of endangering public health, inflicting irreparable harm upon state resources and deceiving the public, according to his office.

Regarding the legal action he and his colleagues are taking against the potential class action settlement, the attorney general expressed his appreciation for “the effort that went into it.”

“The proposed settlement in its current form does not adequately account for the pernicious damage that 3M has done in so many of our communities,” Bonta said. “I have both a moral and legal obligation to voice my opposition, and I thank the court for considering our concerns.”