Environmental organisations start lawsuit against the Dutch State over PFAS emissions

A coalition of environmental organisations is demanding in court that the Dutch government immediately prohibit emissions of per- and polyfluoroalkyl substances (PFAS) into water, air, and soil. This is the first time legal proceedings have been brought against the Dutch State concerning national PFAS policy. The environmental organisations state that the government fails to take sufficient measures to protect residents and the environment from the consequences of exposure to PFAS, even though the State has been aware of the harmful effects on the environment and public health.

The lawsuit is directed at the Dutch Ministry of Infrastructure and Water Management, which was defended on Tuesday 2 December by attorney Edward Brans. He also represented the State when it was sued by the Urgenda Foundation and the environmental organisation Milieudefensie for insufficient efforts in the areas of greenhouse gas reduction and air quality. The environmental organisations are represented by the law firm Knoops. In an interview with the newspaper NRC, Geert-Jan Knoops said that the PFAS case is similar to the Urgenda case. He hopes for ‘a groundbreaking ruling that will help determine the political direction of PFAS policy’.

Both parties are gathering scientific evidence

The State asked the National Institute for Public Health and the Environment (RIVM) to assist by gathering scientific evidence on the effects of PFAS on the environment and public health. The coalition of environmental organisations asked emeritus professors of environmental chemistry and toxicology Jacob de Boer of the Free University of Amsterdam and Pim de Voogt of the University of Amsterdam and KWR Research Institute to prepare an expert report.

PFAS pollution in the Netherlands

De Boer has been working on PFAS since 2000. He discovered the with GenX and PFOA contaminated area around Dordrecht in the Netherlands as a result of activities by Chemours (formerly DuPont). He currently advises the United Nations Environment Programme on PFAS. In their report, De Boer and De Voogt write that the State has been aware, or could and should have been aware, of the presence of PFAS in the Dutch environment since the beginning of this century. In fact, they argue, when issuing discharge permits for PFAS-containing wastewater over the past 40 years, the State could and should already have had more knowledge of the properties of PFAS. The large-scale production of Teflon in the Netherlands and the associated PFAS emissions into the Lower Merwede river and the air would, in their view, have justified an investigation into the consequences for humans and the environment. “Only after research was carried out by an organisation not affiliated with the State, did the national health institute RIVM start investigating PFAS in the Dordrecht area.”

American lawsuit against DuPont

The report also refers to the work of American environmental lawyer Robert Bilott, who in the late 1990s took on a lawsuit against a DuPont Teflon factory in the American town of Parkersburg, later portrayed in the Hollywood film Dark Waters. Bilott represented more than 70,000 local residents, won the case, in which DuPont settled for millions of dollars, and thereby brought PFAS pollution to public attention. In 2004, Bilott also warned about PFAS emissions from the DuPont facility, now Chemours, in Dordrecht. Nevertheless, according to De Boer and De Voogt, all of this failed to register with the Dutch State, ‘not even when it became apparent around 2015 that the Chemours factory in Dordrecht was a copy of the factory in Parkersburg’.

Stop issuing discharge permits

According to the claim, the State is acting in breach of its own statutory obligations, and with regard to PFAS only the legal standards for drinking water are being met. Achieving the minimum requirements for surface water in time is out of the question. They argue that this situation is exacerbated by the fact that permits are issued ‘knowingly and willingly’ for the emission of PFAS into the environment, and that there is a lack of enforcement by the authorities.

Conflicting policies

According to the claim, such permits conflict with the State’s objective of initiating a general ban on the use of PFAS through a restriction proposal at European level. “The State is apparently fully aware of the serious consequences of exposure to PFAS for public health and the environment, but does too little to implement the measures at national level it considers necessary at European level. The Netherlands is working with Denmark, Germany, Norway and Sweden on a proposal for a European ban on PFAS. The claimants point out that ‘there is still a long road ahead before such a ban is approved or enters into force’.

Review existing permits

Among other demands, the claimants are seeking an immediate ban on PFAS emissions into water, air, and soil, and the placement of ongoing PFAS remediation programmes under stricter supervision. They are also asking the court to order the State to create ‘a centralised overview of all companies that have or have had permits, both historically and currently, to discharge and/or emit PFAS, including the quantities and the frequency they are permitted to discharge or emit, as well as an overview of all underlying values on which the permits in question are based’.

Ban on PFAS called disruptive

According to the Dutch mediaplatform nu.nl, lawyer Brans argued during the hearing that it is not known how harmful all PFAS substances are, and that a potential PFAS ban could be disruptive, for example because there are still no adequate alternatives for certain PFAS applications in the medical and energy sectors.

The Dutch court will deliver its judgment on 11 February.

This article was published first by the Dutch platform for water professionals H2O Magazine