Can Environmental Law Solve the 'Forever Chemical' Problem?

Abstract

Although federal environmental law purports to provide the public with comprehensive protection against chemical risks, the U.S. chemical industry is characterized by self-regulation. This self-regulation is exemplified by the dangers posed by per- and polyfluoroalkyl substances (PFAS) — broad classes of persistent toxic substances that have now entered nearly every American’s bloodstream and hundreds of public drinking water systems. Despite data linking exposure to these “forever chemicals” to cancer, infertility, and a host of other public health harms, environmental law has failed to safeguard the American people from their toxic legacy. How did this occur? And what should be done to address the growing PFAS crisis?

This Article answers these questions in four parts. We first describe and analyze the PFAS toxicity crisis and the ways that it disrupts our collective confidence in environmental law. After all, PFAS harm was exposed not by the EPA, but through state common law tort litigation. Second, we analyze the U.S.’s current regulatory framework governing toxic substances. This framework relies on what we call a “toxicity honor system.” Too often, this honor system lacks any sense of honor. Third, we address the Department of Defense’s (DoD) heavy reliance on PFAS on military installations and the unique regulatory challenges — and opportunities — this presents. While the military is afforded deference in national security matters, the military has also sought regulatory consistency and a single, enforceable drinking water standard. We conclude by offering a regulatory roadmap for PFAS regulation. Our proposal eschews the reactive toxicity honor system in favor of a precautionary approach to environmental protection.

Keywords: environmental law, toxic chemicals, drinking water, national security, PFAS, PFOA, PFOS, clean water act, safe drinking water act, sovereign immunity