The Pentagon Is Trying to Dodge Lawsuits Over a Product It Helped Invent

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The United States government said it is immune to 27 lawsuits filed by local and state governments, businesses, and property owners over the military’s role in contaminating the country with deadly PFAS, also known as “forever chemicals.” The lawsuits are a small fraction of the thousands of cases brought by plaintiffs all over the country against a slew of entities that manufactured, sold, and used a product called aqueous film-forming foam, or AFFF — an ultra-effective fire suppressant that leached into drinking water supplies and soil across the U.S. over the course of decades.

The Department of Justice asked a U.S. district judge in South Carolina to dismiss the lawsuits last month, arguing that the government can’t be held liable for PFAS contamination. Lawyers for the plaintiffs called the move “misguided” and said that dismissing the lawsuits would extend an ongoing environmental catastrophe the Pentagon helped create.

Per- and polyfluoroalkyl substances, commonly known by the acronym PFAS (pronounced PEA’-fass), were invented by the chemical giant DuPont in the 1940s. DuPont trademarked the chemical as “Teflon,” which many Americans came to know and love for its use in nonstick cookware in the back half of the 20th century. 3M, another industry behemoth, quickly surpassed DuPont as the world’s largest manufacturer of PFAS, which have also been used in makeup, food packaging, clothing, and many industrial applications such as plastics, lubricants, and coolants.

Unfortunately, PFAS cause a host of health problems. PFAS have been linked to testicular, kidney and thyroid cancers; cardiovascular disease; and immune deficiencies.

The Department of Defense became involved in PFAS development in the 1960s. In response to a number of deadly infernos on military ship decks, the Navy’s research arm, the Naval Research Laboratory, collaborated with 3M on a new kind of firefighting foam that could put out high-temperature fires. The foam’s active ingredient was fluorinated surfactant, otherwise known as perfluorooctane sulfonic acid, or PFOS — one of thousands of chemicals under the PFAS umbrella. Internal studies and memos show that 3M became aware that its PFAS products could be harmful to animal test subjects not long after the foam was patented.

Starting in the 1970s, every Navy ship — and, soon, almost every U.S. military base, civilian airport, local fire training facility, and firefighting station — had AFFF on-site in the event of a fire and to use for training. Year after year, the foam was dumped into the ocean and on the bare ground at these sites, where it contaminated the earth and migrated into nearby waterways. The chemicals, which do not break down naturally in the environment, are still there today. According to the nonprofit Environmental Working Group, there are 710 military sites with known or suspected PFAS contamination across the U.S and its territories including Guam, Puerto Rico, and the U.S. Virgin Islands.

The Department of Defense, or DOD, has been under growing pressure from states and Congress to clean up these contaminated sites. But it has been slow to do so, or even to acknowledge that PFAS, which has been found in the blood of thousands of military service members, pose a threat to human health. Instead, the DOD, which is required by Congress to phase out AFFF in some of its systems, doubled down on the usefulness of the chemicals as recently as 2023. “Losing access to PFAS due to overly broad regulations or severe market contractions would greatly impact national security and DOD’s ability to fulfill its mission,” defense officials wrote in a report to Congress last year.

Meanwhile, people living near military bases — and members of the military — have been getting sick. The lawsuits filed in the U.S. District Court in South Carolina, which were brought by farmers and several states, seek to make the government pay for the water and property contamination the DOD allegedly caused.

Even if these lawsuits are allowed to proceed, experts told Grist they are not likely to be successful. That’s because they rely on the 1946 Federal Tort Claims Act, a law that allows individuals to sue the federal government for wrongful acts committed by people working on behalf of the U.S. if the government has breached specific, compulsory policies.

But the Federal Tort Claims Act has loopholes. One of these loopholes, called the “discretionary function” exemption, states that federal personnel using their own personal judgment to make decisions should not be held liable for harms caused. The U.S. government is arguing that members of the military were using their discretion when they began requiring the use of AFFF and that no “mandatory or specific” restrictions on the foam were violated. “For decades military policy encouraged — rather than prohibited — the use of AFFF,” the Department of Justice wrote in its motion to dismiss the cases.

“Every decision has some discretion to it,” said Carl Tobias, a professor at the University of Richmond School of Law, noting that the discretionary function exemption could be applied to virtually any decision made by a federal employee. “But I don’t think anyone, except maybe the manufacturers of PFAS, had much of an inkling that it was so harmful,” he said. 3M and DuPont did not reply to Grist’s requests for comment.

In its motion to dismiss, the government made another argument that experts told Grist is likely to be successful. The Pentagon has the authority under the 1980 Comprehensive Environmental Response, Compensation, and Liability Act — better known as the Superfund Act — to clean up its own contaminated sites. The Environmental Protection Agency hasn’t classified PFAS contamination as “hazardous contamination” yet, but the DOD says it is already spending billions to investigate and control PFAS at some of its bases. Because the military is voluntarily exercising its cleanup authority under the Superfund Act, its lawyers said in the motion, it should not be held liable for PFAS contamination.

Lawyers for the plaintiffs and the defendants declined requests for comment, citing the ongoing legal proceedings.

The U.S. government is the only defendant involved in the PFAS lawsuits that is likely to enjoy immunity. Already, 3M, DuPont, and other chemical companies, faced with the threat of high-profile trials, have opted to pay out historic, multibillion-dollar settlements to water providers that alleged the companies knowingly contaminated public drinking water supplies with forever chemicals. And the judge presiding over the enormous group of AFFF lawsuits has hundreds of other cases to get through that were not brought by water providers. These include personal injury and property damage cases, as well as those seeking to make PFAS manufacturers pay for medical monitoring for exposed populations.

The scale of the litigation is a clear indication that communities around the U.S. are desperate to find the money to pay for PFAS cleanup — the full cost of which is not yet clear, but could be as much as $400 billion. “We can’t even imagine what it would cost,” Tobias said.

This article originally appeared in Grist at https://grist.org/health/pentagon-tries-to-dodge-pfas-lawsuits-over-a-product-it-helped-invent/. Grist is a nonprofit, independent media organization dedicated to telling stories of climate solutions and a just future. Learn more at Grist.org

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