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Monday, December 9, 2019

Lawyers hire lobbyists to push their PFAS agenda on Congress

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By John O'Brien | Dec 4, 2019

Londonmichael
London

WASHINGTON (Legal Newsline) – Plaintiffs lawyers filing PFAS lawsuits are lobbying Congress as it mulls whether to designate the chemicals as hazardous under the Superfund law – a move that would give those lawyers more companies to target with litigation.

Records show Envision Strategy recently started lobbying at Capitol Hill on behalf of an entity called AFFF Litigation Corporation, which is paying Envision an estimated $30,000. AFFF is short for aqueous film-foaming form, a firefighting product containing PFAS that is central to a group of lawsuits consolidated in South Carolina federal court.

The company – AFFF Litigation Corp. - that hired Envision Strategy to lobby is registered to the same address as one of the leading PFAS law firms – Douglas & London of New York. Founder Michael London did not respond to an email seeking comment.

(There are at least two other similarly named litigation organizations registered to Douglas & London’s address.)

PFAS is a group of chemicals that were also used in consumer products like non-stick cookware and waterproof clothing. They are and will remain in the bloodstreams of almost every American, but the exact health effects of exposure are debated.

PFAS has been the subject of several committee meetings in the Democrat-led House of Representatives, which passed a measure that would designate PFAS chemicals as hazardous substances under the federal Superfund law. The Senate and its Republican majority have yet to take action.

Industry groups have come out against the designation. The Aerospace Industries Association warned that airports would be liable for cleanup costs if PFAS chemicals are included in the Superfund law.

The U.S. Chamber of Commerce and organizations representing airlines, airports and the packaging, chemical, and petroleum industries signed on to another letter. The U.S. Chamber Institute for Legal Reform owns Legal Newsline.

Hospitals and sewage-treatment plants are among those who could also face new liabilities.

The Superfund measure would bypass the normal regulatory process, under which the EPA studies the scientific evidence before recommending a chemical be placed on the list of hazardous pollutants, after which it is submitted for public notice and comment and finally adopted as a formal rule.

And unlike a regulatory rule, which can be challenged as being arbitrary and capricious under federal law, an act of Congress is extremely difficult to overturn except if it is a clear violation of the Constitution.

Meanwhile, activists continue to push for regulation as the Environmental Protection Agency considers a toxicity level more official than its 70 parts per trillion advisory.

The House Environment Subcommittee has provided a forum for those advocates, holding a series of hearings with titles like “The Devil They Knew,” a reference to a PFAS documentary.

One hearing included only one minority witness among nine total. The hearing featured activists, regulators in states that are setting their own PFAS toxicity levels and a scientist who has also been listed as a witness for a PFAS plaintiff in Michigan.

The coming film, “Dark Waters,” was part of the most recent PFAS hearing when actor Mark Ruffalo testified. The movie has angered lawmakers in West Virginia for its portrayal of those in the state.

One shot shows a little girl with rotting teeth, even though oral disease has not been linked to PFAS exposure.

“While delving into this important topic, we ask that you be aware that the PFAS-centered film ‘Dark Waters’ irresponsibly uses tired stereotypes about the people of West Virginia,” state lawmakers wrote to the House.

“The filmmakers behind ‘Dark Waters’ would know that their portrayal is inaccurate if they’d filmed on location in Parkersburg,” the letter continues. “They did not. The crass, reductive treatment of our state begins with the film’s star, Mark Ruffalo.”

It’s not clear what Douglas & London has received for its estimated $30,000 in lobbying. Envision’s roster of lobbyists includes Tim Bishop, a six-term Congressman from New York, as well as Brett Heimov, a former aide to Rep. Jerrold Nadler, who is now the chair of the House Judiciary Committee.

Other organizations have hired lobbyists for PFAS issues, including water and sewer districts, Philadelphia International Airport and Waste Management.

DuPont is using in-house lobbyists, records show, and 3M hired Invariant LLC. 3M’s spending on that firm is estimated at $320,000.

It also hired FTI Government Affairs at an estimated cost of $640,000.

States like Michigan and New Jersey have taken to deciding their own toxicity levels while the EPA determines its, and have also hired private lawyers to pursue lawsuits on contingency fees.

A federal multidistrict litigation proceeding has commenced in South Carolina, where more than 100 lawsuits have been consolidated. Some have called PFAS “the next asbestos” because of the potential for decades of litigation, and Douglas & London is listed among plaintiffs firms like Motley Rice and Napoli Shkolnik on the MDL docket.

Douglas & London featured in the C8 litigation on which “Dark Waters” is based.

That litigation provided some of the existing research on PFAS. Plaintiffs lawyers took on DuPont over the release of PFOA, which is in the group of PFAS, around one of its plants near the Ohio River in West Virginia.

Personal injury lawyers and DuPont agreed to a plan that created a so-called “science panel” and had the company pay for the medical monitoring of residents around the plant. Medical monitoring is a controversial claim for relief on behalf of uninjured plaintiffs that would drive up the cost of a settlement and with it, the amount their lawyers could recover.

By 2012 and after studying more than 30,000 participants, the science panel said there was a probable link to six diseases, yet many claim not enough adequate scientific evidence has been gathered yet. Those diseases include kidney and testicular cancer.

The cases paid off for lawyers in 2017, when DuPont ponied up $671 million to settle 3,500 lawsuits.

From Legal Newsline: Reach editor John O’Brien at john.obrien@therecordinc.com.

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United States House Committee on Oversight and Government Reform3MDuPont

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