County Seeks to Sue PFAS Producers, Oil Companies

Marines fighting fires with foam, a product that uses PFAS . Photo by Lance Cpl. Shawn Valosin/U.S. Marine Corps.

Milwaukee County’s attorneys are interested in bringing legal action against companies that have polluted the environment and whose business models contribute to climate change.

The county’s Office of Corporation Counsel wants to go after companies that have produced and sold substances containing perfluoroalkyl and polyfluoroalkyl substances (PFAS). The chemicals are linked to cancers and infertility, and they take a very long time to break down in the environment, earning them the moniker “forever chemicals.”

Attorneys for the county are also interested in joining civil actions being taken against fossil fuel companies that are contributing to climate change.

The plan is to have the county join multidistrict class-action litigation being taken against these companies, said Melinda Lawrence, deputy corporation counsel. The county would contract with outside counsel litigating the cases at the national level. It’s the same strategy the county employed when it sued opioid drug makers and distributors, which eventually netted Milwaukee County $71 million, the largest single settlement for a local unit of government in the history of the state.

“There are multiple jurisdictional litigations going forward, just like we did with the opioids and with the insulin litigation pieces. We’re basically doing the same thing here with PFAS,” Lawrence said.

The primary source of PFAS contamination for Milwaukee County is firefighting foam. Groundwater sampling near Milwaukee Mitchell International Airport has turned up high levels of the chemicals. Until 2012, the airport used a firefighting foam that contained PFAS. But the chemicals have historically been used in a number of applications, including the production of cookware (nonstick pans) and clothing.

PFAS has been commercially produced since the 1940s. Researchers have revealed that major producers like DuPont and 3M understood how toxic the chemicals were by at least the 1970s, but the public and the U.S. Environmental Protection Agency were not made aware of the danger they posed until the 1990s.

Firefighting foams containing PFAS have been used by civilian and military fire departments since the 1970s. Airports have regularly discharged the foam during routine testing of firefighting equipment required by the Federal Aviation Administration.

The 128th Air Refueling Wing of the U.S. Air Force Reserve and the Air National Guard base located along the western edge of Milwaukee Mitchell airport have been identified as sources of PFAS pollution. Environmental Working Group, a nonprofit research and advocacy group and chemical industry watchdog, analyzed Department of Defense (DOD) sampling data and found Milwaukee Mitchell to be among a handful of “highly contaminated” DOD sites situated along the Great Lakes, posing a risk to nearby residents and wildlife.

In 2022, then-Corporation Counsel Margaret Daun wrote a report to the Milwaukee County Board suggesting the county should join multidistrict litigation against PFAS producers, arguing that the cost of remediating PFAS at county facilities, like the airport, should not be borne by the county.

“Over the last couple of decades, numerous lawsuits across the country have been successfully brought against manufacturers of PFAS-containing substances,” Daun wrote. “One set of lawsuits alone, involving approximately 3,500 consolidated cases resulted in a settlement in excess of $670 million.”

Lawrence told supervisors her office did not want to speculate how a settlement would be spent before it was awarded, but said “the intent of this litigation is we know that PFAS remediation is expensive, and the idea is to get the people who caused the contamination in the first place to be footing a bill for it.”

Mitigating the effects of climate change is equally expensive. An emission reduction plan developed by Milwaukee County is expected to cost $441 million to implement. Similarly, oil companies knew decades ago about the ways burning fossil fuels would affect the global climate. The state of California is currently suing the world’s largest oil companies — Exxon, Shell, Chevron, ConocoPhillips and BP — charging that they suppressed research connecting fossil fuels to climate change.