A burgeoning crop of "forever chemical" contamination lawsuits, challenges to the Trump administration's Endangered Species Act rollbacks and an expected ruling from the U.S. Supreme Court on a key Superfund question are high on the list of environmental cases to watch in 2020.
Many lawsuits have already sprung up targeting the chemical group known as per- and polyfluoroalkyl substances, or PFAS, which are used in products like firefighting foam, cookware, stain protectant and outdoor gear. And with scientists establishing links between the chemicals and health risks, litigators expect a lot of action involving the chemicals in the coming year.
Deregulation has been one of the themes of President Donald Trump's administration, and the weakening of endangered species protections has drawn legal challenges from both environmental groups and states that oppose the rollbacks.
And the Supreme Court is weighing how settlements with the U.S. Environmental Protection Agency in Superfund cases impact how private plaintiffs can sue over the same pollution.
Here, Law360 breaks down five areas of environment litigation to watch in 2020.
PFAS Litigation Just Warming Up
PFAS substances are known as "forever chemicals" because of their longevity in the environment and the human body, and have been identified as leading to reproductive and developmental, liver and kidney, and immunological problems, and possibly cancer.
In Ohio, a firefighter has launched a proposed class action alleging that 3M, Chemours, DuPont and other chemical companies knowingly exposed people to PFAS and misled the public about the exposure and the potential harm.
And multidistrict litigation is pending in South Carolina federal court, as plaintiffs go after PFAS manufacturers like 3M, Tyco Fire Products LP and Chemguard Inc. The cases center on aqueous film-forming foam, or AFFF, and often include allegations that the fire suppressant contaminated groundwater at a military base or airport. They have been brought by individual plaintiffs, municipalities and local water authorities, and states including New York and New Jersey.
Adam J. Levitt of DiCello Levitt Gutzler LLC, who is working with Michigan to help the state decide if it should file its own case, said we're only seeing "the tip of the iceberg" when its comes to this type of litigation.
"I think you're going to see a series of additional litigations against chemical manufacturers, against distributors, and against users in a wide array of fields because these products are endemic throughout our lives," Levitt said.
Separately, 3M investors have launched lawsuits alleging the company and its executives neglected to inform investors about the company's mounting risk of liability for its production of the PFAS chemicals, as 3M faced lawsuits from three states and changing federal policy regarding the chemicals it makes.
The personal injury case is Kevin D. Hardwick v. 3M Co., case number 2:18-cv-01185, in the U.S. District Court for the Southern District of Ohio; The MDL is In Re Aqueous Film-Forming Foams Products Liability Litigation MDL, number 2:18-mn-02873 in the U.S. District Court for the District of South Carolina; the investor case is In Re 3M Co. Securities Litigation, case number 2:19-cv-15982, in the U.S. District Court for the District of New Jersey.
States and Enviros Challenge ESA Rollbacks
States and environmental groups have sued the U.S. Fish and Wildlife Service and National Marine Fisheries Service for rolling back Endangered Species Act regulations.
California and 16 other states sued the Trump administration Wednesday over ESA rollbacks, saying the new rules violate the law's intent and leave animals, plants and habitats at risk. Green groups said in their own suit that the rollbacks failed to analyze the harm that could result from the changes and did not include the required public notice-and-comment period.
The three controversial new rules change some long-standing practices and clarify some areas of confusion, particularly around where the FWS and NMFS can create habitat and how threatened species are treated differently from endangered ones.
The rules also address how climate change should be assessed as part of decisions on whether to list species or designate habitat under the ESA and alter the requirements for how the services consult with other federal agencies during project reviews.
And while the services must still make their final determinations based solely on science, one of the rules allows for the assessment of the economic impacts of extending ESA protections to a species, something that previously had been prohibited.
The enviros' case is Center for Biological Diversity et al. v. David Bernhardt et al., case number 4:19-cv-05206, in the U.S District Court for the Northern District of California; the states' case is State of California et al. v. David Bernhardt et al., case number 4:19-cv-06013, in the U.S. District Court for the Northern District of California.
Supreme Court to Decide Key Superfund Case
Superfund practitioners will be looking for the U.S. Supreme Court's ruling on Atlantic Richfield Co.'s bid to overturn the Montana Supreme Court's finding that state residents can sue the company for cleanup costs related to pollution from a Superfund site despite the company's settlement with the EPA.
Arco, a BP America Ltd. subsidiary, says the Montana high court's decision runs counter to the EPA's sole authority to prescribe how a site should be restored under the Comprehensive Environmental Response Compensation and Liability Act. The federal government has taken Arco's side in the matter.
Peter Farrell, a partner at Kirkland & Ellis LLP, said if the justices side with the Montana Supreme Court, it will bring big changes to how Superfund cleanups are developed.
"Usually once the EPA comes in, the states and the private plaintiffs take a back seat while the EPA goes first, if you will, and decides how to proceed in terms of doing remediation or cleanup," Farrell said. "And depending on how the court rules in Atlantic Richfield, I think that dynamic could change, and you could end up seeing states and private plaintiffs having an equal seat at the table for those kinds of issues and potentially also driving them more than they are now."
For defendants, that would mean having to deal with multiple different constituencies who are all pushing different agendas and having different demands for cleanup actions, remediation actions and potential damages, he said.
The case is Atlantic Richfield Co. v. Christian et al., case number 17-1498, in the Supreme Court of the United States.
The WOTUS Saga Continues
Environmental groups and states have sued the Trump administration over its rollback of the Obama-era rule defining the Clean Water Act’s regulatory reach.
At issue is the definition of “waters of the United States,” which determines which waterways are subject to federal regulation. The Trump administration finalized a repeal of the 2015 rule in September. The green groups' lawsuit started what is likely to be lengthy litigation over a politically charged term that has already been at the center of a slew of court battles.
"Ending science-based protections for the streams our kids play in and fish from, along with wetlands that filter pollution and protect communities from flooding, is reckless and radical. Sadly, we’ve come to expect these kinds of attacks on clean water over the last few years," said Jon Devine, director of federal water policy at the Natural Resources Defense Council.
Once the Trump administration finalizes its replacement rule, it's very likely that will face legal challenges as well.
The case is South Carolina Coastal Conservation League et al. v. Andrew R. Wheeler et al., case number 2:19-cv-03006, in the U.S District Court for the District of South Carolina.
Presidential Power and National Monuments
Native American tribes and environmental groups have challenged Trump's decision to shrink two national monuments.
In December 2017, Trump issued two presidential proclamations modifying the Grand Staircase-Escalante and Bears Ears national monuments, the first designated by former President Bill Clinton, the second by Obama. One of Trump's proclamations divided the Grand Staircase-Escalante monument into three new areas and reduced it from 1.7 million acres to about 1 million acres. The other divided Bears Ears into two areas and reduced it from 1.35 million acres to about 200,000 acres.
Environmentalists and Native American groups sued, saying that the Antiquities Act gives presidents the authority only to create monuments and that Congress reserved for itself the power to alter them after the fact. The DOJ has argued the Antiquities Act clearly intends for a president to be able to modify monuments after they've been created.
In October a Washington, D.C., federal judge denied the Trump administration's efforts to sink the lawsuits, but she left the door open for the government to try again.
The U.S. Department of Justice asserted in its motions to dismiss that the plaintiffs lack standing to bring their lawsuits because they haven't shown that Trump's designations caused them any injury or that the court could appropriately remedy any injuries.
The cases are Wilderness Society et al. v. Donald J. Trump et al., number 1:17-cv-02587, and Hopi Tribe et al. v. Donald J. Trump et al., number 1:17-cv-02590, both in the U.S. District Court for the District of Columbia.