Welcome to the 98%, the not-so-exclusive club of Americans with measurable levels of forever chemicals in their blood; membership is automatic, but the health risks are still being calculated. A toxic threat flows from our taps. Per- and Polyfluoroalkyl substances (“PFAS”) are a family of thousands of synthetic compounds dubbed “forever chemicals” because their unique carbon-fluorine structure prevents them from breaking down in the environment or our bodies.[i] Used since the 1940s in a wide range of products, including non-stick cookware, cosmetics, waterproof jackets, firefighting foam, and more, these chemicals have seeped into our lakes, rivers, and drinking water.[ii] Now, mountains of evidence link PFAS exposure to terrifying health problems, including cancer, immune system suppression, liver damage, and developmental issues in children. One study also found PFAS exposure in drinking water was associated with an increased risk for Polycystic Ovarian Syndrome (“PCOS”) in women.[iii]
This crisis has been escalating for decades, fueled by corporate secrecy and regulatory failure. A recent documentary revealed that 3M, a primary manufacturer, was aware that its PFAS chemicals were present in people’s blood for over twenty-five years before it voluntarily ceased production of some of the most notorious compounds in 2000.[iv] Despite the clear danger, federal regulators have been tragically slow to act. This inaction has forced impacted communities into courtrooms, seeking justice through a legal system that is ill-equipped to handle such a widespread contamination crisis.[v] The unfolding PFAS story reveals a systemic breakdown of federal environmental law, which has created dangerous state-by-state disparities and turned toxic tort litigation into a last resort for communities demanding accountability.[vi]
The Safe Drinking Water Act (“SDWA”) was passed in 1974 to serve as our shield against contaminated water, empowering the Environmental Protection Agency (“EPA”), which is responsible for reviewing levels of contaminants in the public water supply, to establish national health-based standards for drinking water contaminants.[vii] That shield was fundamentally weakened by the 1996 amendments that required the EPA to conduct a cumbersome cost-benefit analysis and prove that regulating a new contaminant offers a “meaningful opportunity for health risk reductions.”[viii] This result has been a catastrophic paralysis; in more than two decades since, the EPA has not regulated a single new contaminant under this process.[ix]
Instead of establishing legally enforceable Maximum Contaminant Levels (“MCLs”), the highest level of a contaminant allowed in drinking water, the EPA has relied on non-binding health advisories.[x] The agency’s process is not just weak; it is painfully slow. Although perfluorooctanoic acid (“PFOA”) and perfluorooctane sulfonate (“PFOS”), two of the most studied PFAS, were on the EPA’s radar for over a decade, it was not until April 2024 that the agency finalized a national, enforceable drinking water standard for them and four other related PFAS.[xi] While this is a step in the right direction, thousands of other PFAS chemicals remain unregulated. At the heart of this issue, these chemicals are particularly dangerous because they are bioaccumulative, which means they build up in the human body over time, compounding health risks with every passing day of regulatory delay.[xii] This continued delay in regulating the entire class of chemicals enables a state of drowning in deferral.
In the void left by federal inaction, states have been forced to fend for themselves. Many have implemented their own drinking water regulations, often with limits far more protective than the EPA’s previous advisory level.[xiii] While state-level action is commendable, it has created an inefficient and inequitable patchwork of protection across the country, forcing each state into costly and duplicative efforts to prove a danger that is nationally recognized.[xiv] This system creates a perverse incentive for polluters, who may be drawn to operate in states lacking the economic power or political will to enact stringent protections.[xv] Public health should not be a lottery dependent on state politics and zip codes.
With federal statutes offering no clear path to justice, communities have turned to the courts, wielding common law claims like negligence, trespass, and nuisance against PFAS manufacturers.[xvi] Proving a negligence claim, for example, requires showing a company breached a duty of care, a high bar when dealing with conduct from decades past.[xvii] Causation is also a formidable hurdle; plaintiffs must trace their contamination and specific health injuries back to a single polluter, which is incredibly difficult when PFAS were used by countless companies and are now widespread.[xviii] Nuisance and trespass claims face similar challenges, often stumbling on whether the contamination, especially an invisible groundwater plume, constitutes an “unreasonable” interference or a direct invasion of property rights.[xix]
Despite these hurdles, litigation has produced some of the most significant actions to date. Recently, 3M and DuPont, a major manufacturer of PFAS-containing products, reached historical settlements with public water providers totaling nearly $14 billion to resolve claims of widespread water contamination.[xx] While settlements can provide adequate funds for remediation, they are an inefficient substitute for regulation.[xxi] They often come only after years of costly legal battles, and because companies do not admit fault, the settlements do little to establish legal precedent that could help other communities.[xxii]
The failure of federal regulation is also a profound environmental justice issue, as the financial burden of cleanup falls disproportionately on local communities and taxpayers.[xxiii] Toxic tort litigation is an attempt to enforce the bedrock “polluter pays” principle and shift that cost back to the corporations that profited.[xxiv] Aiding this effort, the EPA recently designated PFOA and PFOS as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”).[xxv] This strengthens the legal standing of parties seeking to compel cleanup, but it is not the silver bullet needed. The EPA has issued an enforcement discretion policy indicating it will primarily pursue manufacturers and heavy industrial users, not entities like municipal water systems or airports that are often victims of contamination themselves.[xxvi] Ultimately, a system relying on private laws to protect public health is inherently unjust, making access to a safe environment dependent on a community’s ability to fund and sustain complex litigation against some of the world’s largest corporations.[xxvii]
The PFAS crisis is a story of systemic failure. Decades of regulatory delay at the EPA, enabled by a weakened Safe Drinking Water Act, leaves millions exposed to dangerous chemicals.[xxviii] While states have stepped into the breach and lawsuits have forced a degree of accountability, these are reactive and inequitable solutions to a national problem. We cannot litigate our way to safe drinking water, one community at a time. The answer is not an endless game of legal whack-a-mole but a fundamental reform of our environmental laws.[xxix] Congress must amend the SDWA and CERCLA to empower the EPA to act swiftly on emerging contaminants, putting public health before corporate profit and ensuring that no community is left to fight for its safety alone in a courtroom.[xxx] Before you take your next sip of water, just know that up to 110 million Americans might be getting an uninvited, and permanent, chemical guest along with it.
[i] See Carly Johnson, How Safe Drinking Water Act & the Comprehensive Environmental Response, Compensation, and Liability Act Fail Emerging Contaminants: A Per- and Polyfluoroalkyl Substances (PFAS) Case Study, 42 Mitchell Hamline L.J. Pub. Pol’y & Prac. 91, 92–3 (2020) (describing PFAS chemicals, their widespread use in products like firefighting foam and cookware, and their contamination of water supplies); James Pollack & Zack Zahner, Limitations of PFAS Testing in Consumer Products, 40 Nat. Res. & Env’t 9, 9 (2025) (noting PFAS were first developed in the 1940s); Meredith Waugh, The Forever Chemical: Man’s Greatest Achievement or Greatest Horror?, 23 Appalachian J.L. 1, 3 (2025) (explaining that the carbon-fluorine bond in PFAS makes them “extremely resistant to degradation”).
[ii] See Johnson, supra note i, at 92–3 (defining specific examples of common items linked to PFAS contamination).
[iii] See id. at 99 (listing negative health conditions linked to PFAS, including cancer, developmental effects in children, and immune system interference); Ralph A. DeMeo & Jorge Caspary, PFAPocalypse Now: The PFAS Firestorm and Implications for Florida, 94 Fla. B.J. 46, 46 (2020) (noting CDC links PFAS to hormonal problems, certain cancers, increased cholesterol, and low birth weight); Hammarstrand et al., PFAS Exposure and Association with Polycystic Ovarian Syndrome, ISEE Conf. Abstract (Oct. 26, 2020), https://ehp.niehs.nih.gov/doi/abs/10.1289/isee.2020.virtual.P-0881 [https://perma.cc/U9CR-DEDF] (concluding “PFAS exposure in drinking water was associated with an increased risk for PCOS.”).
[iv] See FOX 9 Minneapolis-St. Paul, 3M PFAS documentary / Everywhere & Forever: Blood. Water. And the Politics of PFAS., at 18:03–18:10 (YouTube, Aug. 1, 2025), https://www.youtube.com/watch?v=W_8W-MqqdCY [https://perma.cc/7T9R-79L5] (stating 3M knew for 25 years that PFAS was in blood before ceasing production).
[v] See Johnson, supra note i, at 93, 110 (explaining that states have largely been left to their own devices, relying on state and common law claims); DeMeo & Caspary, supra note iii, at 46 (explaining that public anger over contamination triggered the EPA to issue a Health Advisory Level, which is unenforceable).
[vi] See id. at 93, 110 (breaking down the effects PFAS has cast on federal environmental law, toxic tort litigation efforts, and state disparities).
[vii] See id. at 102 (explaining the SDWA was enacted to ensure public water suppliers met national safety standards).
[viii] See id. at 103 (describing how the 1996 amendments required a cost-benefit analysis and showing of “meaningful opportunity for health risk reductions.”).
[ix] See id. at 103–04.
[x] See DeMeo & Caspary, supra note iii, at 46 (explaining that an EPA Health Advisory Level, or HAL is an “unenforceable, nonregulatory concentration,” which has nevertheless become a “de facto standard.”).
[xi] See Johnson, supra note i, at 124–26 (criticizing the time the EPA has taken to finalize a national standard).
[xii] See id. at 124–26 (detailing the EPA’s decade-long process of evaluating PFOA and PFOS without issuing a regulation and noting that delay is crucial when a chemical bioaccumulates).
[xiii] See id. at 93, 127 (noting states started to institute their own drinking water contaminant levels and observing that many states regulate contaminants independently and sometimes enforce more protective rules than the EPA’s advisory); Waugh, supra note i, at 15 (discussing the split of action among states).
[xiv] See id. at 110–11 (describing the state-by-state approach as “inefficient – forcing litigation to go state-by-state and post-injury.”).
[xv] See Waugh, supra note i, at 19 (arguing that reliance on state-specific claims results in a “patchwork of legal protection that incentivizes polluters to continue polluting states that lack the economic power or political will to say no.”); see also Johnson, supra note i, at 131–32.
[xvi] See Johnson, supra note i, at 110 (“Since injured parties and states are unable to state a claim under CERCLA, many groups and States Attorneys General have initiated lawsuits under state statute or common law claims.”); see also Waugh, supra note i, at 6 (discussing several prominent PFAS lawsuits).
[xvii] See Johnson, supra note i, at 110 (“Since injured parties and states are unable to state a claim under CERCLA, many groups and States Attorneys General have initiated lawsuits under state statute or common law claims.”); see also Waugh, supra note i, at 6 (discussing several prominent PFAS lawsuits).
[xviii] See Johnson, supra note i.
[xix] See id. at 112–13 (listing elements of negligence and the difficulty in proving breach and causation, noting defendants argue the science linking PFAS to ailments is weak or does not show causation).
[xx] See id. at 116–19 (explaining that PFAS contamination often manifests as underground plumes, making it difficult to establish an interference with a property interest, and the utility of products like PFAS-containing firefighting foam can make its use seem “reasonable,” undermining a public nuisance claim).
[xxi] See How To Poison A Planet Premieres Internationally, Douglas & London (Feb. 27, 2025), https://www.douglasandlondon.com/blog/environmental-toxic-exposure/douglas-london-presents-how-to-poison-a-planet-a-must-watch-documentary/ [https://perma.cc/2T4Z-2CEE] (describing settlements with 3M and DuPont totaling nearly $14 billion).
[xxii] See DeMeo & Caspary, supra note iii, at 49 (mentioning the $850 million settlement between Minnesota and 3M, and the $671 million settlement by DuPont for pollution in Ohio and West Virginia); see also Waugh, supra note i, at 6–7 (discussing these settlements and others).
[xxiii] See Johnson, supra note i, at 120–21 (noting that settlements offer quick resolution but prevent the creation of persuasive legal authority when parties do not admit fault).
[xxiv] See id. at 125–26 (explaining that under the current system, “residents, are burdened with the cost of removing contaminants left by polluters who profited from their creation and use.”).
[xxv] See DeMeo & Caspary, supra note iii, at 49 (explaining how listing PFAS under the CERCLA would subject polluters to “retroactive, joint and several, as well as strict” liability); see also Lauren Brooks, The World Turned Upside Down? Whether the Designation of Two PFAS as Hazardous Substances Changes the World of CERCLA Liability and Due Diligence, 98 Fla. B.J. 34, 34 (2024) (discussing CERCLA’s “polluter pays” principle).
[xxvi] See Brooks, supra note xxv, at 34 (announcing the EPA’s May 8, 2024, final rule designating PFOA and PFOS as hazardous substances under CERCLA).
[xxvii] See id. at 35 (describing the EPA’s enforcement discretion memo stating it does not intend to pursue entities like community water systems, municipal landfills, or publicly owned airports).
[xxviii] See Brooks, supra note xxv.
[xxix] See Johnson, supra note i, at 94, 110–11 (describing the legal burden on states and arguing that congressional action on a single group of contaminants does not fix the root issue, which requires “larger, systemic reform.”).
[xxx] See id. at 136 (“Until changes are made to federal statutes . . . stories about drinking water contamination or communities suffering from negative health impacts resulting from chemical mismanagement will continue to occur.”); see Waugh, supra note i, at 19 (calling for Congress to pass legislation directly targeting all PFAS chemicals to meet the urgency of the situation).
