On February 20, 2020, Earthjustice, on behalf of a variety of nonprofit organizations, including the Sierra Club, brought suit against the United States Department of Defense (“DOD”), alleging that the DOD violated the National Environmental Policy Act (“NEPA”) and the National Defense Authorization Act (“NDAA”) in its decision to enter into contracts for the incineration of its unused stockpiles of firefighting foam. Save Our County, et al. v. United States Department of Defense, et al., 3:20-cv-01267 (N.D. Cal. Feb. 20, 2020). According to the complaint, the incineration of firefighting foam poses a threat to communities as the burning of the foam releases per– and polyfluoroalkyl substances (“PFAS”), a group of chemicals found in firefighting foam that may be linked to certain adverse health effects. In the complaint, the plaintiffs allege that the DOD’s contracts violate NEPA because the DOD did not prepare an environmental impact statement prior to consenting to the incineration of the firefighting foam. Additionally, the plaintiffs allege that the incineration of the firefighting foam does not comply with certain regulations created by the NDAA that govern the incineration of PFAS-containing materials.
Save Our County is only the latest litigation in the ever-growing number of lawsuits relating to PFAS. While PFAS litigation initially targeted manufacturers of the chemicals, litigation efforts have expanded to include suits based on the use and disposal of PFAS-containing materials. As litigation continues to evolve, it is likely that lawsuits will continue to be filed in courts across the country.
On the regulatory front, the Environmental Protection Agency (“EPA”) has recently increased its efforts to regulate the chemicals by announcing its intent to publish a proposed regulatory determination under the Safe Drinking Water Act (“SDWA”) for PFAS. The EPA’s proposal is part of its larger 2019 PFAS Action Plan—a multi-pronged action plan detailing the EPA’s goals to increase PFAS regulation. With increased federal regulation, the prevalence of PFAS litigation is expected to continue to rise. We will continue to provide updates as increased federal regulation begins to shape ongoing PFAS litigation.
The complaint filed in Save Our County can be viewed here. Information on the EPA’s announcement of its intent to publish a regulatory determination under the SDWA can be found here and information relating to the EPA’s 2019 PFAS Action Plan can be viewed here.
For more information, please contact William Droze or Mandi Moroz.