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PFAS: The Next Wave of Toxic Tort Litigation

The next asbestos may already be here.

As toxic tort litigation evolves, a new class of environmental contaminants is moving to the center of courtroom battles: PFAS, or per- and polyfluoroalkyl substances. Known as “forever chemicals,” PFAS compounds are quickly becoming the focus of one of the most significant legal and regulatory challenges of our time. And for companies across a wide range of industries, not just chemical manufacturers, the risks are far-reaching and potentially long-lasting.

What Are PFAS and Why Do They Matter?

PFAS are a class of synthetic chemicals that have been used since the 1940s in a wide range of industrial and consumer products, including non-stick cookware, water-repellent fabrics, firefighting foam, and food packaging. These compounds were prized for their resistance to heat, water, and oil. However, their chemical strength is precisely what makes them a regulatory and litigation nightmare.

Unlike other contaminants that break down over time, PFAS persist in the environment and accumulate in the human body. As a result, they have been found in soil, water, air, wildlife, and most troublingly, in the blood of a significant percentage of the U.S. population. Studies have linked PFAS exposure to serious health risks, including certain cancers, immune system suppression, liver damage, and reproductive harm. While scientific debate persists regarding safe exposure levels, public concern is escalating, and regulators and plaintiffs’ attorneys are responding accordingly.

Regulatory Momentum Is Fueling Litigation

The regulatory environment surrounding PFAS is changing rapidly. In 2023 and 2024, the Environmental Protection Agency (EPA) introduced some of the most aggressive PFAS regulations to date.

Among the most notable actions:

• Setting near-zero maximum contaminant levels for six PFAS chemicals in drinking water.
• Designating perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as the Superfund Act, opening the door to cost-recovery actions and federal enforcement.

This CERCLA designation also triggers mandatory reporting and cleanup obligations for companies that manufacture, use, transport, or dispose of PFAS-containing materials. And because CERCLA imposes strict, joint, and several liability, even companies with minimal involvement could face significant exposure.

However, it’s not just the federal government turning up the heat; states are also racing ahead with their own PFAS standards, some of which are stricter than federal guidelines. The result is a complex, fast-moving regulatory patchwork that’s difficult to track and even harder to navigate without experienced legal counsel.

The agency finalized maximum contaminant levels for six PFAS chemicals in drinking water, in some cases setting limits near zero. In a landmark move, the EPA designated two PFAS.

The PFAS Litigation Wave Has Already Begun

We’re not speculating about future lawsuits; PFAS litigation is already well underway and expanding rapidly. The multidistrict litigation (MDL) surrounding aqueous film-forming foam (AFFF), a type of firefighting foam containing PFAS, is one of the largest environmental mass torts in U.S. history. Major chemical companies, such as 3M and DuPont, have already agreed to multibillion-dollar settlements with public water systems. AFFF MDL continues to generate new claims from municipalities, utilities, and property owners.

Beyond the MDL, PFAS-related lawsuits are increasingly being filed by individuals claiming personal injury due to contaminated drinking water or workplace exposure. Class actions, nuisance claims, natural resource damages, and medical monitoring suits are all on the rise.

What’s notable is the broadening scope of defendants. It’s not just PFAS manufacturers who are being targeted; companies in adjacent sectors, including food packaging, apparel, aerospace, electronics, wastewater treatment, and airports, among others, are also being targeted. Plaintiffs are drawing connections between historical PFAS use and environmental or public health impacts, and courts are beginning to take notice.

Why PFAS Litigation Is Uniquely Risky for Defendants

Several characteristics make PFAS litigation especially dangerous for companies:

• Latency and Long-Tail Risk: Like asbestos, PFAS-related illnesses may take years or decades to manifest, creating long-tail liabilities that extend well beyond the original use or disposal.
• Pervasiveness: PFAS are everywhere, in products, soil, and water, making it extremely difficult to identify a single source or defendant. This increases the likelihood of joint liability and complex multi-defendant litigation.
• Scientific Uncertainty: Although science is continually evolving, there remains no clear consensus on safe exposure levels or causation thresholds. This affords plaintiffs considerable latitude and places defendants in a challenging evidentiary position.
• Public Perception and Reputational Risk: PFAS have become a flashpoint for environmental justice and consumer safety movements. For companies named in lawsuits, the reputational fallout can be as damaging as the legal exposure.
• Regulatory Linkage: Once regulatory thresholds are codified, plaintiffs may rely on those standards to support negligence or strict liability claims. In other words, today’s regulatory violations could become tomorrow’s evidentiary foundations for a lawsuit.

What Companies Should Be Doing Now

Whether or not your business manufactured PFAS, now is the time to assess your risk profile and take strategic steps to prepare.

Key recommendations include:

• Conduct Historical Audits: Review past operations and supply chains to determine whether PFAS-containing materials were ever used, handled, or disposed of in the past.
• Engage Environmental and Legal Advisors Early: Developing a proactive defense strategy starts with a deep understanding of both your company’s exposure and the evolving regulatory framework.
• Review Insurance Policies: Coverage for PFAS-related claims is often complicated by pollution exclusions or notice provisions. Collaborate with coverage counsel to review historical policies and identify potential avenues for recovery.
• Monitor Regulatory Activity: Stay ahead of federal and state regulations. New rules may require immediate action, and non-compliance can quickly escalate into liability.
• Prepare for Disclosure: If you’re a public company, consider how PFAS issues may impact your risk disclosures, financial statements, or Environmental, Social, and Governance (ESG) reporting obligations.
• Preserve Evidence and Document Compliance: If you anticipate regulatory scrutiny or litigation, preserve key documents, internal communications, and compliance efforts to protect your interests.

Conclusion

PFAS litigation is not just a trend; it’s a generational legal challenge. As regulatory pressure intensifies and scientific scrutiny grows, the legal exposure for companies will only increase. Those who wait to act until a subpoena or lawsuit arrives will find themselves at a disadvantage.

This isn’t a ripple – it’s a wave, and now is the time for proactive engagement and for working with legal counsel who understand not only the science and regulation of PFAS but also the strategic nuances of toxic tort defense. The next wave is here, and the companies that prepare now will be best positioned to weather it.