On Tuesday, January 14, 2020, Michigan Attorney General Dana Nessel sued 17 companies that manufactured and supplied per- and polyfluoroalkyl substances (PFAS), marking Michigan’s first such legal action against PFAS manufacturers. The complaint alleges causes of action under the Natural Resources and Environmental Protection Act (NREPA), the Michigan Fraudulent Transfer Act (MUFTA), and Michigan’s laws of negligence, trespass, public nuisance, and unjust enrichment. The State seeks to recover “the full value of injuries done to the natural resources of the state and the costs of surveillance and enforcement by the state”, as well as punitive damages. The State also seeks declaratory relief holding that defendants are jointly and severally liable.

The complaint alleges that the defendants manufactured and used PFAS with full knowledge that the human-made chemical compounds posed substantial health risks and environmental risks.  The threats to health listed in the complaint include liver damage, altered cholesterol levels, pregnancy-induced hypertension and/or preeclampsia, thyroid disease, modulation of the immune system, decreased fertility, and decreases in birth weight.

The Michigan PFAS Action Response Team (MPART), established in 2017 by Governor Rick Snyder, has found elevated PFAS concentrations in lakes and waterways, including Rogue River, Thornapple River, and the Huron River. Since June 2019, local health departments have warned residents to avoid contact with PFAS foams on various Michigan lakes and streams. In addition, Michigan water bodies, including the Huron River Watershed, have consumption advisories in place, ranging from consumption limits to “do not eat” fish due to PFAS contamination. MPART also discovered elevated levels of PFAS concentrations in groundwater and surface water, including drinking water sources. Thirty-seven sites are alleged as sources of PFAS contamination based on a list published by MPART.

The complaint further alleges that the defendants intentionally hid their knowledge of the health and environmental risks of PFAS from the public and the State.  In addition, the State alleges that the defendants failed to act on their knowledge by ceasing to use the chemicals, which are found in numerous common household items, such as non-stick cookware and water-resistant consumer products.

This lawsuit will likely take years to resolve; however, anyone currently involved in or potentially involved in PFAS litigation would be well advised to follow the developments in this case, as other states will surely look to this lawsuit to determine whether they should bring their own lawsuits against PFAS-related entities.

Our attorneys have been at the forefront of PFAS issues, including giving presentations as to the future waves of litigation stemming from PFAS issues and coverage implications of PFAS use and litigation. For more information, please contact any of our PFAS – Toxic Torts Team: Jessica Deyoe, Suzanne Englot, Alexandra Fraher,or John Gardella.

Authored By:

Jessica L. Deyoe