Introduction.
After seven years of intense litigation—involving the production of over 27,000,000 pages of documents, the taking of almost 200 witness depositions, over $10 million dollars in tests, fees and costs, over 100 judicial hearings and conferences, over 1,600 court filings, and a final non-stop negotiating session lasting 22 hours, our 3M lawsuit involving the discharge of perfluorochemicals (PFCs) is finally resolved. By the end of the case, over 75 lawyers from eight law firms had been involved with various aspects of the matter, which included several appeals to the Court of Appeals or Supreme Court and one lawsuit against one of the law firms.
The Proceeds.
The matter is resolved with a payment of $850 million by 3M to the State. The Minnesota Environmental Remediation Fund will receive $850 million in the form of a restricted grant. According to the Harvard Environmental Law Review, this is the third largest natural resource recovery in the history of the United States. (The Gulf of Mexico Deepwater Horizon oil spill is the largest.) This is the largest environmental settlement in Minnesota history, more than 100 times larger than the next largest case. To give perspective, I am told that the Reserve Mining case from the 1970s resulted in a $1.84 million resolution.
The lawsuit related to a 100 square mile underground “plume” of PFC chemicals in the eastern metropolitan area of the Twin Cities. The money will be paid by 3M as a restricted grant, with its primary purpose being to construct a state-of-the-art water supply system for communities located above the contaminated plume.
The company will pay up to another $40 million to the Minnesota Pollution Control Agency to help these communities with short-term drinking water solutions. If the $890 million is exhausted at some point in the future and drinking water problems remain, the company will continue to pay to fix those problems under a consent order.
The Case Involved Natural Resources, Not Personal Injuries or Home Values.
The Attorney General’s Office does not have jurisdiction to undertake personal injury lawsuits or property damage cases for individuals. These cases may only be brought by private attorneys. In West Virginia, several law firms filed a personal injury lawsuit against DuPont for its disposal of PFCs used to make Teflon. The lawyers settled the class action personal injury lawsuit with a $671 million payment to the class. The law firm that represented the litigants in the DuPont case also was involved in bringing a lawsuit in Minnesota against 3M. The court dismissed the claims for personal injury damages of the litigants. The lawsuit also involved a claim for diminution in home value caused by PFCs, but the Washington County jury found for the company.
Our lawsuit was about damage to State’s natural resources. A cutting-edge statute with limited judicial history provides that the State of Minnesota is the trustee of the State’s natural resources, including the water, the vegetation, and the birds, fish, and wildlife, and that the Attorney General may file a lawsuit when those natural resources are damaged. Following what I call the “Pottery Barn Rule,” an entity that harms the State’s natural resources must compensate the State for the harm.
People who feel that they have suffered personal injury or property damage should talk to a private attorney.
For what it is worth, I drafted an Opening Statement that I intended to present at trial and have put portions of it on the Attorney General’s Office website. The website includes references to the most significant documents in the case.
The Case Was Heavily Litigated.
This case had a lot of ups & downs.
In 2011, the Metropolitan Council also filed a lawsuit against 3M, claiming it needed one billion dollars to retrofit a water plant. In 2017, for reasons that are unclear to me, the Met Council settled the matter by paying $1 million to 3M.
This followed the Washington County lawsuit which, as mentioned above, zeroed out the claims of the families that brought the suit.
The Minnesota Department of Health.
The U.S. Environmental Protection Agency in 2016 warned that these chemicals may result in adverse health effects, including cancer, developmental defects to fetuses and breastfed babies, liver damage, thyroid damage, and immune effects. The National Toxicology Program of the United States Department of Health and Human Services concluded that these chemicals are a hazard based on a consistent pattern of findings of adverse immune effects in people.
Yet, on the eve of trial, the Minnesota Department of Health issued what its architect wrote was a rushed report claiming that our experts weren’t accurate when they described an increased incidence of cancer in certain populations in the eastern metro area. The Health Department architect of the report has been quoted in newspaper articles for years denying the existence of environmental cancer clusters around the country—even claiming that it is a waste of taxpayer money to investigate whether cancer clusters are caused by environmental contaminants.
I stand with the many scientists and experts around the world who agree on the association between PFCs and cancer and other diseases. An outcome of the DuPont litigation was the creation of the C8 Panel, which was comprised of scientists chosen by DuPont and the victims of its contamination. It took seven years to complete and has been heralded as the largest study of the impact of a pollutant on human health ever undertaken. In the end, they concluded there was a link between PFCs and cancer, thyroid disease, colitis, and pregnancy-induced hypertension.
The Settlement.
One of the issues in the litigation was whether the State could recover up to $2.5 billion attributed to the cost of dredging the Mississippi River and Washington County lakes. The court indicated that these dredging costs did not relate to the recovery of natural resource damages but rather related to environmental cleanup. In the end, our expert testimony supported natural resource damages of about $1 billion. With a settlement of $890 million, we would have been foolish to go further. To the credit of 3M, it agreed that the money should be prioritized to upgrade the water systems in the east metro area.
Partisan Politics.
My Republican opponent has described this lawsuit as frivolous. Unfortunately, it does not appear that he has ever bothered to review the records or understand the PFC chemicals. His comments make clear that he would never take such an action. I believe his comments provide a clear description of the differences between us.
Conclusion.
If you want to know more about this lawsuit, I refer you to the opening statement on the Attorney General’s website. If you want to know more about these chemicals, I refer you to the movie “The Devil We Know,” which previewed a few weeks ago at the Sundance Film Festival.