How criminology can support environmental health: the case of PFAS | Environmental Health

On 26 September 2023, the District Court of Rotterdam (the Netherlands) rendered a historic intermediate ruling in a civil case brought by four Dutch municipalities (Dordrecht, Papendrecht, Sliedrecht, Molenlanden) against the companies DuPont de Nemours and Chemours for harm caused by emissions of PFAS (per- and polyfluoroalkyl substances) [1]. The court ruled that the companies acted unlawfully and committed a tortious act: From 1984 until 1998, they failed to sufficiently inform the licensing authority and municipalities about the risks of PFOA (perfluorooctanoic acid), while neglecting to take the necessary steps to abate emissions. This happened despite existing internal industry concerns about the chemical’s toxicity and its effects based on exposure data dating back to the 1960 s [2]. The court found them civilly liable for the damage caused by emitting PFAS – i.e. responsible for the costs of decontamination – even for those time periods in which they had permits to emit PFAS via air or water. Class action lawsuits followed, and criminal investigations are being conducted into whether the companies and their executives unlawfully endangered public health.

Public concern regarding PFAS has rapidly increased since their health harms have become unequivocally clear. Studies have correlated PFAS-exposure with disruptions in fertility, fetal development, liver, thyroid, and other endocrine functions, the development of testicular and kidney cancer, and immune system function [3]. The long-term societal impacts, such as healthcare costs and environmental decontamination costs (water, soil, air) in Europe alone are estimated at 95 billion euros over 20 years for legacy PFAS and 2 trillion euros over 20 years for all PFAS [4].

Based on recent legal developments, we suggest that the field of criminology can supplement environmental health to advance PFAS regulation and abatement, in particular, and global planetary health, in general [5]. The role of courts to protect public health has considerable precedent in cases of climate change litigation and cases about more specific environmental and health hazards such as asbestos and tobacco. There is growing acceptance of using corporate environmental crime charges to hold polluters responsible. Even if such lawsuits far from recoup the total social costs, this fact should not deter the public from holding these companies increasingly accountable, as evidenced through Robert Bilott’s [6] now famous work initiating PFAS litigation. Similar to the waves of court challenges to pollution by agrichemicals or fossil fuels, legal settlements regarding C-8 (PFOAs, one chemical in the larger PFAS class) took place in the United States, resolving in a 700 million US dollar settlement agreement. This settlement meant DuPont was required to pay for the C-8 Science Panel which developed essential knowledge about the public health impacts of PFAS [7]. 3M, DuPont, and other companies’ subsequent settlements for cleaning up PFAS-contaminated groundwater amounted to 12 billion US dollars. A recent criminal court verdict sentenced 11 executives of the Italian chemical plant Miteni to a total of 141 years of imprisonment and 57 million euro in damages due to PFAS contamination of groundwater [8]. The release of previously secret industry documents following from these court cases spurred further global scientific, journalistic and public scrutiny into PFAS. These lawsuits and investigations have acted as lightning rods for mobilizing civil society, investigative journalist exposés, and the drafting of environmental and public health policy and regulation to confront these chemicals.

This commentary focuses on the Dutch case of DuPont’s facilities in Dordrecht (also known as Dordrecht Works), beginning operation in 1962 and expanded in the 1980 s, to become the second largest PFOA-user by the 1990 s [9]. In 2012, PFOA was replaced by DuPont’s trademarked Gen-X technology, substituting PFOA for HFPO-DA (hexafluoropropylene oxide dimer acid, another PFAS) and, in 2015, the chemical division of this plant became Chemours. Our criminological lens frames the history of PFAS exposures as state-facilitated corporate crime, discussing how PFAS pollution emerged in part due to knowledge asymmetries, and was perpetuated by close alignment of corporate and governmental interests abetted by historic and contemporary fragmentation in regulatory enforcement. Through this case study, we show how insights into criminogenic dynamics can complement public health approaches to provide levers to intervene in environmental health crises.