President Joe Biden’s Environmental Protection Agency has finalized several rules to reduce exposure to long-lasting harmful chemicals called perfluoroalkyl and polyfluoroalkyl substances, or “forever chemicals,” which are used in a wide range of consumer products, including shampoo, pizza boxes, electronics, and much more.
President-elect Donald Trump has vowed to undo many climate regulations brought by the Biden administration. But Trump has also stated he would ensure the United States has the cleanest water and air, which could conflict with his deregulatory agenda when it comes to PFAS. Environmental attorneys said this creates uncertainty for PFAS rules and litigation.
PFAS regulations under the Biden administrationPFAS can be found in cleaning products, water-resistant fabrics, nonstick cookware, and other personal care products. The chemical has also been found throughout the environment in the water, soil, and air. It is deemed as the "forever chemical” because it does not naturally break down.
The administration has linked exposure to PFAS to reproductive effects, developmental delays in children, increased cancer risks, reduced ability of the body's immune system, and more.
The EPA created the "PFAS Strategic Roadmap" in 2021, embarking on a broad effort to address chemical contamination throughout the economy. The agency's road map has set rules under many environmental statutes to reduce exposure to PFAS in drinking water, manufacturing, designating certain chemicals as hazardous waste, and more.
"For far too long, families across America, especially those in underserved communities, have suffered from PFAS in their water, their air, or in the land their children play on," EPA Administrator Michael Regan said in 2021.
"This comprehensive, national PFAS strategy will deliver protections to people who are hurting, by advancing bold and concrete actions that address the full lifecycle of these chemicals," Regan added.
PFAS rules at risk under TrumpKayla Weiser-Burton, a lawyer at Dorsey and Whitney, said there will likely be pressure to undo some PFAS regulations, depending on how the rules will affect the industry and consumers economically.
Earlier this year, the EPA issued a rule setting the new national drinking water standards to reduce public consumption of PFAS. Weiser-Burton said rules such as the drinking water standards and others that may increase costs for local utilities, industry, and others could be at risk of being reversed.
Weiser-Burton said that in the Trump administration's first term, there was a focus on supporting the industry, especially the domestic sector.
"There will be some tension placed on PFAS rulemakings to roll them back, depending on how the industry is responding, and depending on how proactive industry and their lobbyists can be to try and get some movement to address these rulemakings that are now 'harming the industry,' as they are putting it," she said.
The EPA finalized a rule last month ensuring that PFAS and other chemicals undergo a robust safety process review before being used for manufacturing. Weiser-Burton noted that the manufacturing rule has raised concerns about delays in reviewing chemicals and increased costs for the industry. This is a type of rule that could be examined by the Trump administration, she added.
Pending litigationAlthough the Biden EPA has made significant efforts to promulgate PFAS rules, the agency faces legal challenges. In June, the Association of Metropolitan Water Agencies and the American Water Works Association filed a lawsuit against the EPA’s drinking water rule, claiming the agency did not follow the Safe Drinking Water Act process and did not rely on the best available science or data when finalizing the rule.
Then, in October, the National Association of Manufacturers and other groups asked the U.S. Court of Appeals for the District of Columbia Circuit to vacate the EPA’s drinking water standards rule.
Funding was provided to address water suppliers’ requirements, but some have criticized it as insufficient to cover the cost of installing PFAS treatment in drinking water. The American Water Works Association estimates investments to install PFAS treatment in drinking water will total from $37.1 billion to $48.3 billion in the next five years.
AWWA said the annualized costs of operations and maintenance are estimated to be from $2.7 billion to $3.5 billion, roughly twice the EPA’s estimate in the final rulemaking.
“There were a couple of lawsuits filed in response to that [drinking water] rulemaking. And I do think that those are going to be pretty big ones to watch, and I will certainly be interested to see how that continues to move forward under Trump,” Weiser-Burton said.
Jeff Porter, an environmental lawyer at Mintz, said a major question is: What will the Trump administration do with the pending challenges against Biden’s EPA PFAS rules and other rulemaking efforts?
“When I look at the things that have been done implementing the PFAS road map since October of 2021, a lot of things have been done in not a lot of time,” Porter said.
The agency has also been sued to add PFAS regulations. The Public Employees for Environmental Responsibility filed a lawsuit in June on behalf of a group of farmers and ranchers accusing the EPA of failing to prevent PFAS in biosolid fertilizers, leading to contamination on farmlands.
Porter noted that challengers of PFAS rules argue they were finalized so quickly that they were not done right and should be reversed. Supporters of the regulations say PFAS is a grave threat to human health.
"So, the courts and the Trump administration are going to have to balance those two things,” Porter said.
For existing cases challenging the EPA, the Trump administration has several avenues to delay or reconsider regulation or rule implementation, the law firm Stinson wrote.
It added that despite the future of certain PFAS rules, it expects PFAS litigation to continue at a "feverish pace.”
“Over the past year, litigation has significantly increased against companies that don't manufacture PFAS but use these chemicals in their products or processes. These claims are premised on traditional tort liability rather than environmental statutes,” Stinson wrote.
Congressional action on PFASSen. Shelley Moore Capito (R-WV), who is slated to become the chairwoman of the Environment and Public Works Committee in the next Congress, said the EPA's rule designating PFAS as a hazardous substance under the Comprehensive Environmental Response, Compensation, and Liability Act raises concerns about local water utilities' liability.
The EPA's PFAS Superfund rule could affect water systems by holding them liable for PFAS contamination in water, even if they did not directly pollute it. Water systems would then need to cover cleanup costs.
Similar concerns exist for the liability on the agricultural sector, including industrial farms using biosolids from treatment plants as fertilizer containing PFAS. This is called a "passive receiver" of PFAS.
In a November hearing to mark the 50th anniversary of the Safe Drinking Water Act, Capito said, "This is a source of concern, I think, as we move forward," referring to Superfund liability.
Capito told the Washington Examiner: "I have long focused on addressing PFAS pollution and will continue to prioritize this issue as Chairman of the EPW Committee next Congress."
"PFAS regulations should be based on the best available science and carefully tailored to protect public health and the environment without imposing unnecessary burdens on taxpayers or essential service providers," she added.
"In addition to prioritizing science-based and achievable regulations, I will work to advance bipartisan legislation that supports PFAS destruction technologies," Capito said. "We must ensure that we have the tools to address PFAS contamination effectively — rather than merely shifting or delaying its management — while avoiding the creation of new environmental concerns."
Meanwhile, Trump has talked about ensuring "clean water" and "clean air," but Porter noted it is unclear how the administration will meet these promises. He added that the administration might move slowly to finalize unfinished efforts on the PFAS road map due to expected resource reductions at the agency.
But if PFAS liability reform legislation comes out of Congress, the Trump administration might be interested in it.
"We have this thing, PFAS, which has been used since World War II in thousands of products, everything from carpeting to pizza boxes to pajamas," Porter said. The government recently decided that PFAS is a huge societal problem, but fully addressing it will cost billions.
"Now the question that we, as a country at large and government more specifically, have to come to grips with is where are we going to find those billions and billions of dollars?" Porter said.
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When asked how the incoming Trump administration plans to approach PFAS and current regulations, spokeswoman Karoline Leavitt for the Trump-Vance transition said, "In his first term, President Trump advanced conservation and environmental stewardship while promoting economic growth for families across the country."
"America's energy agenda under President Trump produced affordable, reliable energy for consumers along with stable, high-paying jobs for small businesses — all while dropping U.S. carbon emissions to their lowest level in 25 years. In his second term, President Trump will once again deliver clean air and water for American families while Making America Wealthy Again," she added.