REGULATING PFAS AND "FOREVER CHEMICALS": LIABILITY UNDER ENVIRONMENTAL REMEDIATION LAWS

Abstract

Per- and polyfluoroalkyl substances (PFAS) are a class of more than ten thousand synthetic compounds whose carbon-fluorine bonds resist environmental degradation, earning them the epithet forever chemicals. Their near-universal presence in drinking water, soil and human blood has forced remediation law to confront a contaminant that does not fit the paradigm on which strict, joint and several liability was built, namely a single, identifiable, geographically bounded release. This paper undertakes a doctrinal and critical examination of liability for PFAS contamination under the American Comprehensive Environmental Response, Compensation and Liability Act, 1980 (CERCLA), tracing the 2024 hazardous-substance designation of PFOA and PFOS, the jurisprudence on owner, operator, parent-corporation and arranger liability, and the unresolved tension between CERCLA's textual strict liability and the Environmental Protection Agency's enforcement-discretion carve-outs for passive receivers such as water utilities and fire departments. It situates this analysis against the multi-billion-dollar settlements reached in the Aqueous Film-Forming Foams multidistrict litigation and the earlier Leach and Bartlett litigation against E.I. du Pont de Nemours & Co. The paper then turns comparatively to the European Union's proposed universal REACH restriction and to India, where no PFAS-specific statute exists but where the doctrine of absolute liability and the polluter-pays principle, developed in M.C. Mehta v. Union of India and Indian Council for Enviro-Legal Action v. Union of India, offer a jurisprudential foundation for future remediation claims. The paper argues that ubiquity, not culpability, is now the central obstacle to environmental liability regimes, and proposes a calibrated framework combining source-directed strict liability with proportionate, exposure-based cost allocation.