PFAS Update: State Hires California Firm to Litigate PFAS Claims; Other Lawsuits in Progress

On August 25, Wisconsin Attorney General Josh Kaul (D) and Governor Tony Evers (D) announced that the state had hired a law firm, Sher Edling LLP, to litigate against companies responsible for discharging PFAS compounds in Wisconsin. According to a press release from the Department of Justice (DOJ), Sher Edling “represents state and local governments and other public agencies in significant environmental cases across the country. The firm currently represents public entities in multiple PFAS contamination matters.”

In January, Gov. Evers announced that his administration was soliciting bids from law firms to find a legal team for PFAS litigation. This is one of many recommendations from the state’s PFAS Action Plan, published late last year by the governor’s PFAS Action Council. Among other things, the report recommended that the state “take appropriate legal actions against companies responsible for PFAS discharges.”

The Department of Natural Resources (DNR) is monitoring about 50 sites for PFAS contamination, including military installations, industrial areas, and waterways in Superior, Marinette, Madison, and Milwaukee. It is not yet clear which companies or sites could be involved in litigation.

The Department of Administration (DOA) oversaw a competitive bidding process that received submissions from 11 law firms. A panel of employees representing DOA, DOJ, and DNR scored the submissions and identified several finalists, who then submitted bids. Among the finalists, Sher Edling submitted the lowest bid.

Under the legal services agreement signed by Gov. Evers and Sher Edling, the firm will not be paid if it loses a case. But if the state wins a PFAS lawsuit litigated by the firm, the firm will receive:

  • More than 23 percent of the recovery if it is less than $10 million
  • About $2.3 million, plus 18.5 percent of the amount by which the recovery exceeds $10 million, if it is between $10 million and $15 million
  • About $3.2 million, plus nearly 13.9 percent of the amount by which the recovery exceeds $15 million, if it is between $15 million and $20 million
  • About $3.9 million, plus more than 9.2 percent of the amount by which the recovery exceeds $20 million, if it is between $20 million and $25 million
  • About $4.4 million, plus more than 4.6 percent of the amount by which the recovery exceeds $25 million, if it is $25 million or more

Several PFAS lawsuits involving residents and local governments have already been filed or resolved in Wisconsin. In January, we reported that three companies had settled a $17.5 million lawsuit with Peshtigo residents concerning PFAS contamination in the area. The PFAS originated at the Fire Technology Center and other nearby sites in the Peshtigo/Marinette area. One of the companies involved has also committed to paying for a new water line for area residents, and the company has plans to work with DNR to remediate the contamination.

In March, the city of La Crosse sued 23 companies that manufactured or distributed firefighting foam containing PFAS, as we covered here. Hundreds of public and private wells near the La Crosse Regional Airport have tested positive for PFAS, likely because of firefighting foam tested and deployed at the airport. In early August, a group of 48 homeowners in the town of Campbell, where the airport is located, filed a class action lawsuit against the same group of companies.

Additionally, Wisconsin Manufacturers and Commerce and Leather Rich, a dry cleaning company, sued DNR in February alleging that the agency “has unilaterally and unlawfully changed the requirements for the state’s Remediation and Redevelopment program and the Voluntary Party Liability Exemption (VPLE) program.” Those programs allow private parties to cooperate with DNR on environmental cleanups and receive liability protections if they remediate contamination to the satisfaction of DNR. The lawsuit alleges that DNR improperly added PFAS compounds to its list of hazardous substances and made other changes to the VPLE program without going through the rulemaking process by which state agencies can promulgate enforceable standards.

PFAS (per- and polyfluoroalkyl substances) are a family of thousands of manufactured chemicals that are found in many everyday items, including nonstick pans, cleaning products, paints, and firefighting foam. PFAS are present in the bloodstream of 98 percent of Americans. Competing studies debate whether PFAS have negative health effects and, if they do, at what levels they are harmful.

Check Hamilton’s PFAS issue page for more information.

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