A recent article by Ken Silverstein in Forbes explores efforts to regulate PFAS compounds, both by public policymakers and by the trial bar. He reached a powerful conclusion.
“To be clear,” he writes, “chemical makers like DuPont and Chemours create products that are used around the world – innovations that have benefited society. But public policy must strike a balance between invention and inequality, all to mitigate potential harm to the environment and human health. If that fails, then trial lawyers are more than willing to bat cleanup – all good reasons to try and fix this mess.”
And a mess it is. Several entities are tackling PFAS regulation, all from different angles. The EPA is in the midst of an extensive effort to develop national standards for PFAS exposure, focusing on the two original PFAS compounds—PFOA and PFOS—in drinking water. Meanwhile, the U.S. House of Representatives recently passed a bill to enact stricter regulation of these compounds.
A cross section of advocacy groups wants to go even further to either regulate the hundreds of different PFAS compounds as a single class or to enact a complete ban on the PFAS family. State legislators and regulators are also enacting their own measures to regulate PFAS compounds.
National standards for PFOA and PFOS levels in drinking water would provide clarity and avert the emerging patchwork quilt of conflicting state regulations, which have confused consumers and made it virtually impossible for companies to keep up with such diverse rules. Whether bans on all PFAS compounds are necessary—or even possible given their integral presence in hundreds of products from cookware to cell phones—is still an open question.
As public policy evolves on PFAS, it must be based on robust scientific findings. The Center plans to contribute to the overall body of scientific evidence being considered with the release of two studies on PFAS compounds that examine results from the published studies most often cited in current regulatory discussions of PFAS. These scientific reviews are led by senior researchers in the fields of biostatistics, epidemiology, and toxicology, and use advanced review and modeling methodologies.
These studies will give regulators and policymakers a new, independent and objective portrayal of the scientific facts surrounding PFAS research, not agenda-driven analyses that advocate for a particular result.
Leaving the enforcement of regulatory standards to the trial bar is like asking the fox to guard the henhouse. Despite rules, such as the Daubert Standard, that are intended to ensure that the scientific evidence presented in a case is credible, it would create too many opportunities for incomplete, cherry-picked, or outright wrong scientific “facts” to be brought before juries.
To expect clarity surrounding PFAS from those who stand to benefit from the mess in the first place would be a failure indeed.