The Australian government has filed the largest-ever lawsuit against American chemical giant 3M and its local subsidiary. The government is seeking A$2 billion in damages for past and future costs of investigating and managing “permanent chemical” contamination by firefighting foam at around 30 defense sites.
The government claims the company withheld internal testing that showed these foams caused significant environmental damage. 3M has vowed to protect itself.
What’s interesting is the range. State-run facilities such as public water utilities are unlikely to be included. The lawsuit also avoids mentioning the potential effects on human health. This is at least in part because the effects of permanent chemicals are an active topic of scientific debate and research.
What is this incident based on?
Forever chemicals are properly known as PFAS, or per- and polyfluoroalkyl substances. These are also known as “eternal chemicals” because they take a very long time to break down in the environment.
The federal lawsuit focuses on the use of PFAS-containing firefighting foam made by 3M, which was used on defense bases from the 1970s to the mid-2000s. These aqueous film-forming foams are being phased out in Australia.
Several communities near affected defense facilities are suing the federal government, resulting in approximately $400 million in legal settlements in class actions and other lawsuits.
To date, the government has not attempted to recover these costs, but it is now doing so in order to restore the site, file a class action lawsuit, and cover future restoration costs.
Although the full court documents have not yet been released, multiple government statements and court documents suggest the claims are primarily based on the Australian Consumer Law.
The Commonwealth could allege that 3M failed to disclose what it knew about the environmental risks of these firefighting foams and engaged in misleading or deceptive conduct.
In the United States, many state attorneys general are seeking to recover cleanup and monitoring costs from manufacturers who allegedly promote PFAS products as safe despite knowing their risks.
In late May, Attorney General Michelle Rowland and Assistant Secretary of Defense Peter Kalil announced a lawsuit against 3M.
Mick Tsikas/AAP
What are the chances of reconciliation?
While both sides appear to have a firm public position to address the case, that is not guaranteed. Large lawsuits such as this often result in pre-trial settlements.
This is because reaching a settlement allows the parties to agree on compensation without a judicial finding of liability.
Australian courts encourage alternative dispute resolution. This enables settlements, reduces costs and uncertainty, and at the same time allows defendants to avoid formal findings of wrongdoing. All class action lawsuits against the defense were resolved before trial.
In the United States, local governments and water authorities have sued 3M and other PFAS manufacturers for selling products they know pollute the environment, seeking payments to “help clean up the mess they have created.” These allegations became part of a larger case.
In response, 3M denied liability but agreed to pay about A$14 billion (US$10 billion) to help pay for testing and treatment.
Personal injury lawsuits have also been settled, including one against another manufacturer, DuPont, with 3,550 claims valued at A$953 million (US$670 million).
What’s inside the case and what’s outside?
The proceedings are framed as an effort to recover past and future costs from approximately 30 defense installations.
But PFAS contamination is not limited to these locations. Other locations of concern include state-run fire facilities, industrial sites, and public water supplies. This lawsuit is unlikely to directly address those locations.
It is unclear whether the recovered funds will support measures sought by affected communities, such as regular blood tests and long-term medical monitoring. Residents of Katherine in the Northern Territory are questioning whether a potential settlement will compensate them for losses not covered by a previous class action. Many civilian and military firefighters who have been exposed to these PFAS blowing agents for decades are not involved in compensation programs or large-scale lawsuits.
Notably, the lawsuit does not mention potential effects on human health. Assistant Secretary of Defense Peter Khalil cited advice from health officials that evidence of health effects from permanent chemicals remains limited.
In 2023, the World Health Organization’s cancer control agency found that one of the forever chemicals, PFOA, is carcinogenic. However, there are many different types of PFAS. WHO is currently conducting a systematic review of major PFAS compounds and their health effects, including cancer and reproductive toxicity.
The PFAS class action lawsuit against the defenders similarly excluded personal injury claims and instead focused on property, business, and cultural losses. Still, evidence of possible health effects was raised because pollution affects property values.
It will be interesting to see whether the Commonwealth can separate environmental pollution from health concerns, while maintaining the position that evidence of human health effects remains limited.
PFAS contamination has affected around 30 defense sites, including RAAF Williamtown Base in New South Wales.
Jungle Jack/Flickr, CC BY-NC-ND
What’s next?
If the case goes to trial and the government prevails, it would likely open the door for further claims against 3M by fire departments, water suppliers and other affected parties.
This may also occur if the claim is resolved out of court.
Regardless of the outcome, further legal action and advocacy from PFAS-affected communities across Australia is likely.
