There’s only one practical solution to protect public health: ban PFAS. Action Alert!
When DuPont agreed in 2017 to pay a $670 million settlement for releasing forever chemicals into water and soil near its plant along the West Virginia-Ohio border, the company knew for decades it was endangering public health and safety. Yet when its executives first learned about the problem and were offered ways to reduce the pollution, they found their most appealing option was doing nothing and keeping the matter under wraps. That’s because lax regulation, a court system friendly to deep-pocketed defendants, and a media largely disinterested in environmental crime do little to deter bad actors.
In an extensive paper for the National Bureau of Economic Research, Roy Shapira and Luigi Zingales use internal company memos from the case to show how factors that should have motivated DuPont to act were toothless compared to the benefits of buying more time. Under our current system, all corporate polluters – not just DuPont – have fewer incentives to solve the problem than continuing to poison our world.
DuPont’s Decision
When DuPont created and marketed Teflon™ to the public, the forever chemical PFOA, known within the company as C8, was an essential ingredient. A blend of carbon and fluorine, C8 was great for Teflon™ pans and other products for the same reasons it’s awful for us: it stays stable in high temperatures and repels water. Food doesn’t stick to it, but it also doesn’t break down in the environment or in our bloodstream. It’s linked to numerous health problems, including kidney and testicular cancers, ulcerative colitis, thyroid disease, preeclampsia, and high cholesterol.
According to internal company memos, DuPont’s top executives were told in 1981 that C8 was dangerous. Its supplier, the company now known as 3M, discovered that the chemical scarred the eyes of rat fetuses exposed to it. In follow-up tests, DuPont monitored pregnant employees who worked with C8 and discovered the chemical in their umbilical cord blood. They also took samples near their West Virginia plant and found elevated C8 levels in drinking water.
Executives met in 1984 to weigh their options, which included ending C8 use immediately, taking steps to reduce public exposure, or doing nothing at all. The first option meant removing their blockbuster Teflon™ product from the market, causing immediate damage to DuPont’s reputation and bottom line. A million-dollar incinerating facility could reduce the pollution but building one would serve as an admission that DuPont knew that C8 was dangerous – an evidentiary time bomb in future lawsuits. So, the executives chose the option that carried no immediate consequences – continuing to let C8 into the environment, often at higher levels than before.
Faced with that decision, any prominent offender might do the same, even at the cost of public health and safety. Weak government regulators and the power of deep pockets make it easy for companies to gamble that the public won’t find out and, if they do, won’t be able to do much about it. Indeed, by the time DuPont phased out C8 four decades later, executives had shielded themselves from any real consequences. So why don’t our deterrence systems work?
Legal Liability
On paper, the risk of expensive lawsuits should convince companies to stop polluting, but DuPont provides a textbook case of how to manage that risk. When a West Virginia farmer sued DuPont over his dead livestock in the late 90s, the company reached a quiet settlement five years later. Big defendants can greet new lawsuits with implicit threats to drag the case out for years or decades, hoping weary plaintiffs and their lawyers lack the means and patience to see it through. Suing a large employer in a small community can also turn plaintiffs into town pariahs, facing pressure to drop the case from friends and neighbors worried about their jobs.
The case that led to DuPont’s $670 million settlement was atypical. The plaintiffs’ lead counsel, Rob Bilott, was a veteran corporate defense attorney, with the means to endure an extended trial. He also had unique experience to know where to look for violations in DuPont’s internal documents, and in those early days of digital records, DuPont left behind a lot of them. Today’s companies better understand how to avoid creating paper trails. Finally, the pollution happened in West Virginia, where plaintiffs enjoy a lower evidentiary burden than many other states. Without these factors, DuPont might never have settled.
Regulations
Laws and regulations aimed at protecting us were little help in the C8 case. The Toxic Substances Control Act (TSCA) of 1976, reputedly written with the help of chemical industry lobbyists, gave grandfather status to C8 and other substances already on the market, granting them the presumption of being safe. Under the law, a company must share concerns about a grandfathered chemical only if it poses a substantial risk to the environment. Since companies can shield most internal data, even ingredient names, as trade secrets, only in-house scientists would have enough evidence to find a problem – and no incentive to look for one.
Giant corporations can also work the clock to minimize regulatory action, repeatedly delaying enforcement until a more friendly administration arrives. They can also force regulators to deal with old friends. When DuPont prepared for its eventual battle with the Environmental Protection Agency, it hired two ex-EPA administrators for their communications team. Finally, as Shapira and Zingales point out, regulators can be so afraid of career backlash from losing a case, they often err on the side of offending companies.
Personal and Corporate Reputation
People and companies, in theory, don’t want a public reputation as polluters, but the executives who did nothing about C8 had little to fear. Had they voted to stop Teflon sales in 1984, they’d have received little public credit for taking action, and the decision might have cost them their jobs and bonuses. By letting decades pass before their inaction came to light, they ducked all personal accountability. Not only was no one ever prosecuted, no careers were affected by the case. Every member of the 1984 executive committee – and all but one member of DuPont’s 29-member Board of Directors at the time – retired or died before news broke about that fateful meeting. Further, none even had their name associated with the scandal. A database search of news articles from 1984 to 2015 found no 1984 executive ever mentioned in conjunction with C8 pollution.
DuPont itself also largely dodged any serious reputational hit. Most news stories, especially from national outlets, reported the settlement and quickly moved on. The company also spun off its chemical unit overseeing C8 into a new company named Chemours. While the companies still squabble over liability and bills, the new entity gives the DuPont distance from its problematic forever chemical.
The Recommendations
In every aspect – liability, regulation and reputation – time made a difference. Delaying the day of reckoning, if it ever comes at all, cushions the blow of being caught. Polluters have no reason to stop so long as the personal risks of taking action far exceed the potential long-term costs of doing nothing.
Shapria and Zingales suggest raising interest rates on damage awards, so the more you delay, the more you pay. They also want better laws to promote and protect corporate whistleblowers and limiting confidential settlements in cases where public safety remains at risk. Finally, they want executives held criminally liable for decisions they make on their company’s behalf.
One Hopeful Sign
Current leaders in the U.S. Justice Department may agree with this call for more executive accountability. In a September 2022 memo, Deputy Attorney General Lisa Monaco said prosecuting people who commit and profit from corporate crime should be a Department priority – and those individuals should either be prosecuted before their companies or at the same time. Monaco’s memo also takes aim at delaying tactics, warning companies they risk losing credit for cooperation if they drag their feet turning over relevant evidence.
Time to Ban PFAS
US regulatory agencies have proven themselves incapable or unwilling to meaningfully address the extensive contamination of our world and bodies with PFAS. The EPA’s approach to PFAS has largely been to monitor and report. The few actions that have been taken have mostly been limited to just two chemicals, PFOA and PFOS, which have been voluntarily phased out of production in the US, but, due to their persistence in the environment, still show up in water systems, food, dust and consumer products. Note that the rationale given for banning these chemicals below focuses on human health impacts of PFAS, but these chemicals are also having significant ecological impacts.
The EPA has only set drinking water guidelines for PFOS, PFOA, GenX and PFBS (four of approximately 9,000 PFAS), and they are non-enforceable. The EPA’s health advisory levels for drinking water are supposed to protect Americans from adverse health effects resulting from exposure throughout their lives to PFAS in drinking water. In 2009, the agency adopted a provisional health advisory level of 400 parts per trillion (ppt) and 200 ppt for PFOA and PFOS, respectively, in drinking water. In May 2016, these levels were lowered to 70 ppt for PFOA or PFOS individually or combined. In June 2022, they were lowered yet again to 0.004 ppt and 0.02 ppt for PFOA and PFOS, respectively. In this last update, the EPA admitted that recent research “indicate[s] that some negative health effects may occur with concentrations of PFOA or PFOS in water that are near zero.”
In other words, there is no safe level of these two PFAS chemicals in drinking water! Yet recent testing of tap water from 44 places in 31 states found that only one sample had no detectable PFAS; all the other samples were above the latest guidelines set by the EPA. Given the pervasive contamination of our tap water, and the EPA’s own admission that levels of PFAS near zero can still have health effects, the lack of urgency on the part of the EPA to do something meaningful is stunning.
Further, drinking water is just one route of exposure. We’re exposed to PFAS in our diet, dust, carpet, upholstery, and a multitude of consumer products in addition to drinking water. We also don’t know the synergistic negative effects of long-term exposure to a cocktail of PFAS.
There’s a lot we don’t know about the effects of extensive PFAS contamination. Most of the research pertaining to human health effects so far has been done on PFOS and PFOA, referred to as “long-chain” PFAS because they have six or more fluorinated carbons. These have been replaced by a newer generation of PFAS (referred to as “short-chain” since they have fewer than six fluorinated carbons) that chemical companies claim are safer. There is a startling lack of data on the safety of these chemicals, but the evidence so far shows that they are just as, if not more, dangerous than older PFAS:
- The evidence indicates that short-chain PFAS can be equally persistent in the environment as long-chain PFAS. They are also more mobile in the environment and more difficult to remove from drinking water.
- Short-chain PFAS accumulate in the body, perhaps even more than long-chain PFAS.
- Short-chain PFAS have been shown to be more effectively taken up by plants.
- Little is known about the long-term impacts of exposure to short-chain PFAS, but a growing body of evidence suggests they have similar adverse health effects as the chemicals they were made to replace, including immune problems, reproductive and developmental issues, damage to the liver and kidneys, and cancer.
There are thousands of these short-chain PFAS circulating in the environment and in our bodies, yet we know very little about their effects or long-term impacts. For these reasons, scientists in the field have called for the EPA to regulate PFAS as a class rather than take the usual approach of dealing with each distinct chemical at a time, which clearly isn’t practical when there are 9,000 different PFAS chemicals. Less than 1 percent of all PFAS have been tested for their hazardous effects. It’s taken the EPA decades to even think about setting enforceable drinking water standards for just two PFAS chemicals; the agency’s current approach of assessing one chemical at a time is akin to doing nothing. And even if the EPA restricts or bans one chemical, industry can simply move on to the next one.
All PFAS, whether short-chain or long-chain, are extremely persistent in the environment due to their molecular structure, with studies estimating that some PFAS have lifetimes in the thousands of years. This persistence and accumulation increase the possibility of harm. We have enough evidence to know that these chemicals pose a real threat to our health. If we hope to stem the tide of contamination that threatens our health, the health of our children, and the health of the environment, we cannot play PFAS whack-a-mole; we must ban these chemicals as a class.
Action Alert! Write to Congress and the EPA, urging them to ban PFAS as a class to protect public health. Please send your message immediately.
