Massachusetts has officially joined the growing coalition of states—including Colorado, Wisconsin, Michigan and Illinois—who have filed civil suit against the manufacturers and users of poly- and perfluoroalkyl (PFAS) chemicals, also known as “forever chemicals.” On May 25, 2022, Massachusetts Attorney General Maura Healey filed suit against 13 manufacturers of PFAS in firefighting foam. Seeking “costs to clean up and remove, restore, treat, and monitor PFAS contamination and an order requiring the manufacturers to reimburse the state for the damages its products caused,” the suit follows on the heels of last month’s recommendation by the Massachusetts PFAS Interagency Task Force to ban the sale of products with knowingly-added PFAS by 2030, regulate PFAS chemicals as a class and increase public awareness through education. Filed directly in the US District Court for South Carolina, the state’s suit is destined to join the ever-growing number of cases currently consolidated under MDL No. 2873 In re Aqueous Film-Forming Foams (AFFF) Products Liability Litigation.
While damages were not explicitly stated in the filing, Massachusetts Governor Charlie Baker has been quoted as saying, “Since taking office, our administration has provided over $110 million in funding to address PFAS contamination.” Massachusetts’ entry into PFAS litigation is but one of many signals of the ever-increasing concern amongst municipalities and states regarding the long-term cost of PFAS regulation and remediation. While several states have seen success in bringing claims, the total cost of nationwide remediation is unknown.
Unlike the last major wave of state action against the tobacco industry, however, the gathering wave of litigation against the PFAS industry is complicated by the fact that the federal government required many of the products at issue—such as firefighting foam—to incorporate the exact same chemicals the states now allege are unreasonably dangerous.