Australia’s huge ‘forever chemical’ lawsuit focuses on the cleanup – not human health. Why?
The Australian government has launched its largest-ever lawsuit, suing American chemical giant 3M and its local subsidiary. The government is seeking A$2 billion in damages for the past and future cost of investigating and managing “forever chemicals” contamination from firefighting foams on almost 30 Defence sites.
The government alleges the company withheld internal testing that showed these foams did significant environmental damage. 3M has vowed to defend itself.
What’s interesting is the scope. State-owned facilities, such as public water utilities, are unlikely to be included. The case also avoids any mention of possible impacts on human health. This is at least in part because the impacts of forever chemicals are a live topic of scientific debate and inquiry.
What is the case based on?
Forever chemicals are properly known as PFAS, or per- and polyfluoroalkyl substances. They are also known as “forever chemicals” because they take a very long time to break down in the environment.
The Commonwealth case focuses on the use of PFAS-containing firefighting foams manufactured by 3M and used on Defence bases from the 1970s until the mid 2000s. These aqueous film-forming foams have been slowly phased out in Australia.
Several communities near affected Defence facilities have sued the Commonwealth, with class actions and other claims amounting to around $400 million in legal settlements.
Until now, the government hasn’t sought to recover these costs, but is doing so now to remediate the sites, pay out class actions and cover future remediation.
While full court documents are not yet public, multiple government statements and the court file suggest the claim is mainly based on the Australian Consumer Law.
The Commonwealth may argue 3M engaged in misleading or deceptive conduct by failing to disclose what it knew about the environmental risks of these firefighting foams.
In the United States, many state attorneys-general have sought to recover clean-up and monitoring costs from manufacturers allegedly promoting PFAS products as safe, despite knowing their risks.
How likely is a settlement?
While both sides appear to have adopted a firm public position committing to the case, this isn’t guaranteed. Large lawsuits like this frequently reach a settlement before trial.
This is because reaching a settlement allows parties to agree on compensation without a judicial finding of liability.
Australian courts encourage alternative dispute resolution, which can enable settlements and reduce costs and uncertainty, while allowing defendants to avoid formal findings of wrongdoing. Class actions against Defence have all settled before trial.
In the US, municipal governments and water authorities sued 3M and other PFAS manufacturers for selling products they knew would contaminate the environment, seeking payments to “help clean up the mess that they created”. These claims became part of a larger case.
In response, 3M agreed to pay about A$14 billion (US$10 billion) to assist with testing and treatment costs while denying liability.
Settlements have also been reached in personal injury litigation, including one against another manufacturer, DuPont, worth A$953 (US$670) million across 3,550 claims.
What’s in and what’s out of the case?
The proceedings have been framed as an effort to recover past and future costs from almost 30 Defence sites.
Yet PFAS contamination isn’t limited to these sites. Other sites of concern include state-operated firefighting facilities, industrial sites and public water supplies. This case is unlikely to directly address those locations.
It’s not clear whether any funds recovered would support measures sought by affected communities, such as routine blood testing or long-term medical monitoring. Residents of Katherine in the Northern Territory have questioned whether any potential settlement would compensate losses not covered by earlier class actions. Many civilian and military firefighters exposed to these PFAS foams for decades have not been involved in compensation schemes or major litigation.
Notably, the case doesn’t mention any possible effects on human health. Assistant Minister for Defence Peter Khalil has cited advice from health authorities that evidence of health impacts from forever chemicals remains limited.
In 2023, the cancer agency of the World Health Organization found one forever chemical, PFOA, was carcinogenic. But there are many different types of PFAS. The WHO is now conducting a systematic review of key PFAS compounds and health outcomes, such as cancer and reproductive toxicity.
The PFAS class actions against Defence similarly excluded personal injury claims, focusing instead on property, business and cultural losses. Even so, evidence about possible health effects was raised because contamination affected property values.
It will be interesting to see whether the Commonwealth can separate environmental contamination from health concerns, while maintaining its position that evidence of human health impacts remains limited.
What’s next?
If the lawsuit goes to a trial and the government succeeds in its claim, it would likely open the door to further claims against 3M by fire services, water suppliers and other affected groups.
This could also happen if the claim is settled out of court.
Regardless of the result, more legal action and advocacy is likely from communities affected by PFAS around Australia.
Cameron Holley receives funding from the Australian Research Council (DP260103099).
Carley Bartlett receives funding from the Australian Research Council (DP260103099). Her PhD was supported by an Australian Government Research Training Program scholarship.
