A Texas attorney served as lead counsel in what could be a $2 billion settlement in New Jersey with chemical giants DuPont, Chemours and Corteva, marking the largest environmental recovery for a single state’s claim in U.S. history, according to New Jersey officials.
The claims arose from “forever” chemical contamination, known by the acronym PFAS, at four industrial sites, with the three chemical companies agreeing to pay $875 million over 25 years and establish a remediation fund of up to $1.2 billion. The companies will share the costs under the deal, subject to court approval, and settle New Jersey’s multiple PFAS-related lawsuits with DuPont.
“This landmark settlement sets a powerful precedent for environmental protection efforts nationwide,” said William J. Jackson of Kelley Drye & Warren in Houston, who served as lead counsel for the state of New Jersey.
Jackson said the settlement came during a break in the trial with DuPont.
“It’s been a huge fight, but honestly taking this case to trial in federal court in Camden [N.J.] really broke this open,” Jackson said. “And we’ve learned a great deal about what DuPont knew and when, and their conduct and so forth, and lot of it came out in trial.”
Shawn LaTourette, the New Jersey Department of Environmental Protection commissioner, called it “the largest environmental settlement in our state’s history.” LaTourette said he is unaware of any other state that “has achieved a settlement of this value.”
Jackson said the Kelley Drye & Warren firm helps represent 12 other states in PFAS litigation, including Texas, and the knowledge and experience gained will be useful in those cases.
“I would expect what we have learned along the way will be beneficial for our other client states,” he said. “We have absolutely gathered a great deal of information along the way, and the trial this summer was really helpful in terms of learning additional information and a complete picture of the issues in play,” Jackson said.
In December, Texas Attorney General Ken Paxton sued 3M and DuPont for allegedly engaging in deceptive trade practices, including misrepresenting the safety of household products that contained PFAS, such as Teflon, Stainmaster and Scotchgard.
Paxton said in a statement that the two companies knew for “decades that PFAS chemicals could cause serious harm to human health, yet continued to advertise them as safe.”
He said the suit was filed to “penalize these companies and hold them accountable for deceiving Texans into buying consumer products without vital information.”
“Despite this knowledge,” the lawsuit said, the companies “continued to market PFAS products and chemicals in Texas and elsewhere as safe for consumer use, misrepresent their environmental and biological risks, and conceal risks of harm from the public.”
“For decades, advertisements included images of family home life in and around these products, were marketed to women cooking for their families, and specifically promoted the value of the products for households with children and pets,” the lawsuit said. “These advertisements did not disclose material information regarding the harms of the chemicals, and through the context and claims of the advertisements, misrepresented their safety for household and family use.”
The legal actions in New Jersey and Texas are part of a wave of similar lawsuits in states like Ohio, California, Illinois, Washington, Oregon, Georgia, Minnesota, Connecticut, Wisconsin, North Carolina and South Carolina.
Lawsuits accusing major chemical companies of polluting U.S. drinking water with toxic PFAS chemicals led to over $11 billion in settlements 2023, with experts predicting that new federal regulations and a growing awareness of the breadth of the contamination will spur more litigation and settlements.
The lawsuits focus on PFAS — per- and polyfluoroalkyl substances — which are persistent synthetic chemicals linked to serious health problems as cancer, liver damage and immune system issues.
PFAS accumulate in the body, which is why the Environmental Protection Agency set its limits for drinking water at four parts per trillion for two common types — PFOA and PFOS — that are phased out of manufacturing but still present in the environment.
Gale Pearson, a senior partner with Nachawati Law Group in Dallas, said PFASs are highly toxic. A single droplet can contaminate the water needed to fill 1,000 Olympic swimming pools.
The Environmental Protection Agency’s new data showed PFAS contamination affects drinking water for approximately 165 million nationwide, with confirmed contamination at more than 9,000 sites.
PFAS accumulates and is persistent, Pearson said.
“So, when you drink a contaminated glass of water, the PFAS stays in your body, and when you drink a second glass, it continues to accumulate,” she said.
PFAS was a product first created by 3M in Cottage Grove, Minnesota, in the 1950s, and it now contaminates nearly every living creature on the planet. Pearson said a Red Cross study using samples from blood donors showed they all had PFAS in their blood, except in a remote town in Korea. “This chemical is everywhere on the planet. We can have an Ice Age, and this chemical will still be on the planet.”
Known for their resistance to environmental breakdown, PFAS are used in various consumer products such as nonstick metal coatings for cookware, paper food packaging, facial creams, cosmetics and sewage sludge applied as fertilizers on crops and pasturelands. The chemicals were used in Aqueous Film-Forming Foam, a foam commonly used by firefighters to suppress fires.
In an earlier agreement this year, Jackson and his Kelley Drye team assisted New Jersey in securing a $450 million settlement with 3M for PFAS contamination.
The $2 billion agreement came after a month into trial for PFAS contamination, remediation and natural resource damages.
The trial against E.I. du Pont de Nemours and Co. (now known as EIDP, Inc.), The Chemours Company, Corteva, Inc. and DuPont de Nemours, Inc. began in federal court in Camden, New Jersey, in May before Chief Judge Renée Marie Bumb.
The settlement came after a month of court that covered five combined bench trials on statutory liability claims and defensive issues against the DuPont entities related to PFAS and other contamination discharged from DuPont’s Chambers Works site in Deepwater, New Jersey, on the banks of the Delaware River.
Chemours, DuPont and Corteva have agreed to pay $875 million over 25 years to the state of New Jersey to settle environmental claims, including pollution linked to PFAS.
The companies, represented by Lanny Kurzweil of McCarter & English and Eric Lasker of Hollingsworth, did not respond to messages seeking comment Wednesday afternoon.