A Brave New World: Trying Causation In PFAS Cases Under CERCLA

Key Takeaways

• The D.C. Circuit recently held that the EPA reasonably classified PFOA and PFOS as hazardous substances under CERCLA, clearing the way for additional cleanup and cost-recovery claims involving PFAS contamination.
• Companies facing PFAS allegations can expect to see plaintiffs pursue parallel tort and CERCLA claims. Because the CERCLA causation standard is distinct from traditional proximate causation, defenses that successfully defeat traditional PFAS claims may not be enough to dispose of CERCLA liability.
• Causation defenses in PFAS cases will now have to be fashioned to account for both the traditional proximate cause standard and the more nuanced, elusive CERCLA causation standard. Early case assessment and jurisdiction-specific causation analysis will be increasingly important, and expert strategies that address both traditional tort and CERCLA standards should be considered.