Wisconsin’s Department of Justice — alongside the Department of Administration — is taking the first steps towards legal action against PFAS polluters.
In a statement, Governor Tony Evers announced that he and Attorney General Josh Kaul have directed the Department of Administration to identify outside law firms to represent the state. The final decision on who will represent Wisconsin in future litigation is up to the Governor.
In an email to WORT, a Department of Justice spokesperson wrote that the state is seeking outside legal counsel, especially attorneys with a history of litigating environmental cases, because the workload associated with PFAS lawsuits is too much for the DOJ to handle by itself.
The announcement comes after state lawmakers significantly weakened an emergency rule in December that allowed the DNR to regulate PFAS-based firefighting foams. It also comes a month after the state’s PFAS Action Council, a coalition of state agencies and University of Wisconsin researchers, issued its PFAS Action Plan, which recommends pursuing legal actions against corporations that discharge PFAS into the state’s waters.
Carly Michiels, who handles government relations for environmental advocacy group Clean Wisconsin says Evers’ plans will help counterbalance attempts to undercut PFAS enforcement and regulation.
“All of these actions in the legislature have been done at the behest of industry and PFAS users. So this action, finally providing accountability and prioritizing public health, is necessary and needed,” Michiels told WORT.
The Governor’s administration has not yet named which corporations it will be pursuing or a timeline for the legal action.
At least five other states have pursued litigation against PFAS polluters. In those cases, monetary gain from settlements or damages have gone towards funding clean-up and removal of PFAS in affected communities and waterways.
A spokesperson for the DOJ told WORT that the Department will work with the legal counsel to determine what financial damages claims to pursue – but did not speak to what those financial damages would be used for.
Firefighting foam producers may be on the list, as PFAS is often found in firefighting foams.
The northwoods town of Peshtigo is the base of Tyco Fire Products, a subsidiary of Johnson Controls, which produces firefighting foam. This month, the company settled a $17.5 million, class-action lawsuit with over 270 households over PFAS contamination found in private drinking wells.
In Madison, PFAS contamination remains at the Dane County Airport and Truax Airfield, largely the by-product of chemicals used in firefighter training from the 1950s to the 1980s — although, PFAS-based firefighting foam was used at Truax until 2015 and small amounts of foam are still stored there in case of emergencies.
Madison, Dane County, the Wisconsin National Guard — which operates out of Truax — and the DNR are currently debating whose authority it is to administer and foot the bill for cleanup efforts.
Maria Powell is the Executive Director of the Madison-based Midwest Environmental Justice Organization, which has spent years advocating for more robust PFAS testing in area waterways. Powell says that finger-pointing has severely bogged down the testing and cleanup efforts.
“The problem is that, at the base, you have numerous responsible parties,” Powell says. “Everybody has part of the responsibility and so what I see happening is that everyone’s to blame so nobody’s to blame. There was a lot of resistance right from the beginning about who would test and a lot of resistance to testing at all.”
Even with a potential infusion of funding, cleaning up PFAS contamination is a notably difficult process. According to a 2019 report from the City of Madison, the chemical is so ubiquitous in modern life that trace amounts of it can be found in the blood streams of most residents.
(PHOTO: PFAS foam, C/O Wisconsin DNR)
EDITOR’S NOTE: This story has been updated to clarify that PFAS-based firefighting foams were used at Truax until at least 2015