Michigan’s PFAS drinking-water limits hang in balance of Supreme Court case

• The Michigan Supreme Court heard arguments Wednesday in a case that could decide whether Michigan’s PFAS drinking-water standards remain in place
• Chemical giant 3M sued in hopes of voiding the standards, arguing the state failed to adequately consider costs to businesses
• State lawyers contend they weren’t required to do so and revoking the standards would put Michiganders at risk

The Michigan Supreme Court heard arguments Wednesday in a case that could make or break rules requiring water suppliers to filter cancer-causing “forever chemicals” out of customers’ drinking water.

The fate of those rules hangs in the balance, after Minneapolis-based chemical giant 3M sued the state in hopes of overturning them.

The company wants to void the rules, arguing that state regulators missed a key procedural step when crafting them. The case comes to the Supreme Court after lower courts deemed the rules invalid but kept them in place pending the state’s appeal.

3M’s real concern isn’t the drinking water standards, but a groundwater cleanup requirement that was triggered by state law once Michigan established its drinking water standards. Companies like 3M, which spent decades manufacturing PFAS despite knowing its dangers, could face hefty cleanup costs if found liable for any of the 329-and-counting PFAS contamination sites in Michigan.

During arguments Wednesday in Lansing, 3M lawyer Nessa Coppinger argued that because Michigan’s drinking water standards had the downstream effect of forcing industries to clean up contamination, the state was required to consider how much it would cost.

“EGLE [the Michigan Department of Environment, Great Lakes, and Energy] must adhere to the requirements of the Administrative Procedures Act,” Coppinger argued, and in this case, “it failed to do so.”

Related:

• Up to 3.2M in Michigan may be getting water from PFAS-tainted aquifers
• Appeals court nixes Michigan PFAS water limits in ruling for 3M
• Michigan ‘river walker’ program warns anglers on eating contaminated fish
• Nessel: $10B PFAS settlement with 3M doesn’t resolve Michigan’s claims

Assistant Attorney General Richard Kuhl, meanwhile, argued the law doesn’t require the state to consider downstream effects of its rulemaking. He also contended it would have been impossible for the state to estimate cleanup costs, because Michigan law doesn’t always require industry to disclose pollution it caused, much less alert regulators to cleanup plans.

As a result, Kuhl said, any cost estimates would be “guesstimates.”

The lack of transparency in Michigan’s cleanup laws was one aspect of a 2023 Bridge Michigan investigation that exposed how industries have been allowed to repeatedly pollute the state with impunity.

PFAS is a class of thousnds of chemicals, and studies have linked some of them to cancer, birth defects, immunity issues and other health problems. 

Michigan’s drinking water standards, which were nation-leading when crafted in 2020, established legal limits for seven PFAS compounds in public water supplies. 

Because state law requires polluted groundwater that is used as a drinking water supply to be cleaned up to drinking water standards, the state’s PFAS rule effectively lowered the threshold for polluters to clean up PFAS-tainted aquifers. 

Industry lawyers contend the state was required to consider how much that would cost.

The federal government has since finalized stronger nationwide regulations, but those are vulnerable to rollbacks by President-elect Donald Trump, who has vowed to “slash excess regulations.”

If the state and federal rules dissolved, millions of Michiganders would face greater risk of exposure to the cancer-causing “forever chemicals,” which have polluted many of the state’s rivers, lakes and groundwater.

“EGLE put these maximum contaminant levels in place to protect the public from this toxin,” Kuhl said, adding that experts have since learned PFAS is “much more toxic” than previously thought.

Potentially billions of dollars are at stake for 3M, which last year reached a $10.3 billion settlement to resolve a class-action lawsuit over PFAS contamination in Michigan and other states. Michigan Attorney General Dana Nessel is also suing the company, and 3M faces potential liability at individual PFAS sites throughout Michigan.

During Wednesday’s arguments, Supreme Court justices peppered both sides with questions but gave little indication of how they’ll decide the case.

Leaders of some water systems have vowed to keep removing PFAS from their sourcewater, regardless of what the court decides. That includes Ann Arbor, which provides water to 125,000 residents from the PFAS-polluted Huron River.