Forever chemicals are seeping through the courts

Aug 16, 2022 View in browser   By Debra Kahn, Ry Rivard and Jordan Wolman Firefighting foam has become a major source of PFAS contamination. | Justin Sullivan/Getty Images Chemical companies are in federal court this week for a key test of who will pay to clean up pervasive and persistent PFAS, a class of compounds known as "forever chemicals." 3M Co. and other companies facing thousands of lawsuits from across the country seeking potentially billions of dollars in damages will be arguing they are partially immune from liability for pollution caused by firefighting foam, a major source of PFAS contamination, because the foam was contracted for by the federal government. The litigation in U.S. District Court for the District of South Carolina represents an early fight in a larger battle over who will pay to clean up pollution from PFAS — in this case, with a specific focus on contamination brought by firefighting foam laced with the chemicals. "It's an enormous number of cases," said David Hoyle , an attorney at Motley Rice LLC who is representing some of the plaintiffs — water agencies and local governments. "The aggregate damages here are substantial." The Environmental Working Group has counted hundreds of places where the foam has been used or spilled. Exposure to PFAS at certain levels through drinking water or consumption of contaminated meat or fish has been linked with cancer, liver damage, thyroid disease and decreased fertility. The foam is just one strand of a massive set of cases working their way through the courts. It's part of a set of 2,500 cases brought by states, water districts, local governments and individual property owners. 3M and some smaller companies — Tyco Fire Products LP, Chemguard Inc., the Kidde Defendants, National Foam Inc., and Buckeye Fire Equipment Co. — will be making the case for partial immunity on Friday. The chemical manufacturers associated with the foam argue the government ordered the foam and knew what was in it — so the companies were, in effect, doing the government's bidding, which entitles them to liability protection. Plus, they argue, the foam itself has saved countless lives and properties. The plaintiffs argue the chemical industry is engaged in a decades-long campaign of falsehoods about the dangers of PFAS generally and the foam specifically. How, they ask, can the chemical companies claim that the government knew about the risks of PFAS in the foam if the companies continue to deny such risks exist? "When the evidence is viewed in its totality," they say, "it is abundantly clear that the government was not merely misled by industry, but, in fact, was outright lied to." SUPPLY CHAINS MINING MONEY — ICYMI this gem of a provision tucked into the Inflation Reduction Act, which President Biden is scheduled to sign today: Mining companies operating in the U.S. will be able to write off 10 percent of the cost of their operations if they produce any amount of "critical minerals," including lithium, cobalt and nickel. The language is aimed at boosting domestic supplies of minerals needed for renewable energy technologies. Mining and mineral processing interests are thrilled. "It's a huge boon for critical minerals within the United States," said Ben Steinberg , executive vice president of the Battery Materials & Technology Coalition. Will it water down support for a deal that includes imposing royalties on hardrock mining? House Natural Resources Chairman Raúl Grijalva (D-Ariz.) told our Jael Holzman he hopes not. Read more from Jael at POLITICO'S E&E News here.   INTRODUCING POWER SWITCH: The energy landscape is profoundly transforming. Power Switch is a daily newsletter that unlocks the most important stories driving the energy sector and the political forces shaping critical decisions about your energy future, from production to storage, distribution to consumption. Don't miss out on Power Switch, your guide to the politics of energy transformation in America and around the world. SUBSCRIBE TODAY.     SUSTAINABLE FINANCE WATER IT DOWN — Dozens of institutional investors representing nearly $10 trillion in assets under management are joining a new effort to pressure companies to be better water stewards. The Valuing Water Finance Initiative launched by Ceres, a corporate responsibility nonprofit, is being billed as the only global investor-led initiative focused on getting companies to respond to issues related to water use, water pollution and treating water as a financial risk. The initiative prioritizes a set of six science-based expectations for corporations: water quantity, water quality, ecosystem protection, access to water and sanitation, board oversight and public policy engagement. Investor signatories include institutions such as pension funds, mainstream asset owners and socially responsible investors spanning the globe, including the two California public pensions, Fidelity International, the New York City comptroller, As You Sow and Boston Common Asset Management LLC.  The initiative is targeting 72 companies to start – a list that could change, according to Kirsten James , Ceres' senior program director for water – including Pepsico Inc., Unilever PLC, The Hershey Company, Perdue Farms, Amazon.com Inc., Apple Inc., and Alphabet Inc. James said investors will work at their discretion to best engage companies, but that shareholder resolutions "could come into play when investors think it's the right approach." EXTREMES UNEVEN HEAT — File under discouraging but not surprising: A new analysis of extreme heat across the U.S. finds that neighborhoods with large minority populations will suffer far more than neighborhoods with large white populations. The First Street Foundation, a New York nonprofit, looked at how extreme heat will affect each of 32,000 ZIP codes in the continental United States in 2023 and in 2053. Tom Frank of POLITICO's E&E News used Census Bureau records to examine the results through racial and ethnic layers. The disparities are based on broad geographic patterns, said Jeremy Porter , the First Street Foundation's research director. Minorities are concentrated in southern states and big cities — places that will see more extreme heat. "It has a lot to do with where minorities live," Porter said. "They have a lot more exposure." Read more from Tom here. BUILDING BLOCKS NUCLEAR OPTION — Keep an eye on California this month, where Gov. Gavin Newsom just proposed loaning Pacific Gas & Electric up to $1.4 billion to keep its Diablo Canyon nuclear power plant open. Newsom aides cited extreme heat, electric vehicles and sluggish deployment of renewables as justification for keeping the plant open past its scheduled retirement date of 2025. Not everyone is on board. Environmental groups are worried it could hurt the case for offshore wind by sucking up transmission capacity. Renewable energy companies are also not pleased. The legislature has until Aug. 31 to reach a deal. Anne C. Mulkern of POLITICO's E&E News has more. YOU TELL US Welcome to the Long Game, your source for news on how companies and governments are shaping our future. Team Sustainability is editor Greg Mott, deputy editor Debra Kahn and reporters Lorraine Woellert and Jordan Wolman. Reach us all at gmott@politico.com, dkahn@politico.com, lwoellert@politico.com and jwolman@politico.com. Want more? Don't we all. Sign up for the Long Game. Four days a week and still free! WHAT WE'RE CLICKING — Whole Foods is defending itself in court for firing employees who wore Black Lives Matter apparel. — California's drought has shamed Erin Brockovich into replacing her L.A. lawn with artificial turf. — Remember the Concorde? American Airlines just signed a deal for 20 supersonic planes that will use sustainable aviation fuel — and cost $200 million each.   LISTEN TO POLITICO'S ENERGY PODCAST: Check out our daily five-minute brief on the latest energy and environmental politics and policy news. Don't miss out on the must-know stories, candid insights, and analysis from POLITICO's energy team. Listen today.       Follow us on Twitter Debra Kahn @debra_kahn Greg Mott @gwmott Lorraine Woellert @Woellert Jordan Wolman @jordanwolman   Follow us

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