Court of Appeals rules against PFAS restrictions in Michigan’s drinking water

A Michigan Court of Appeals panel ruled on Tuesday in favor of the Minnesota chemical manufacturing company 3M in a setback for regulations limiting per- and polyfluoroalkyl substances (PFAS) in the state’s drinking water.

The 2-1 ruling from the three-judge panel establishes that Michigan failed to follow proper procedures when implementing its 2020 regulations of the “forever chemicals,” causing detriment to businesses by not considering the costs of compliance with state regulations on PFAS.

An initial Court of Claims ruling invalidated the regulations, but the Court of Appeals decision allows the state’s PFAS restrictions to stay in place until a potential appeal to the Michigan Supreme Court. 

The Department of Environment, Great Lakes and Energy (EGLE), which was responsible for the implementation of the PFAS regulations in ground and drinking water, issued a statement expressing disappointment at the court’s ruling.

“It is disappointing that 3M, one of the major chemical manufacturing companies responsible for bringing PFAS to market, continues to push back on efforts that protect residents from toxic products,” the statement said.

3M argued that by not properly considering the costs to businesses when setting regulations, EGLE violated the Administrative Procedures Act, an assertion with which Judges Christopher Murray and Michael Gadola agreed. Judge Allie Greenleaf Maldonado dissented.

“Although EGLE identified the estimated actual statewide compliance costs of the proposed drinking-water rule on businesses and groups, it did not estimate costs that these changes automatically imposed on groundwater cleanup,” reads the opinion from Murray and Gadola.

Environmental groups quickly voiced their concerns with the ruling, including the Great Lakes PFAS Action Network (GLPAN), whose co-chair Tony Spaniola emphasized the risk of the state having no regulations of PFAS whatsoever if an appeal to the Supreme Court fails.

“After achieving a victory for PFAS clean-up just last week in Oscoda, the Court of Appeals decision – unless reversed by the Michigan Supreme Court – would harm millions of people throughout Michigan and threaten our Great Lakes and inland waterways,” Spaniola said in a statement. “The Court of Claims has already determined that Michigan’s health-protective standards are scientifically sound, and it would be a very dire consequence if the Supreme Court were to allow those standards to be wiped out on a narrow administrative technicality raised by an out-of-state entity.”

Scientific research has shown that exposure to PFAS, especially through drinking water, can cause detrimental health effects including liver damage, fertility issues, thyroid disease and cancer. 

GLPAN co-chair Sandy Wynn-Stelt, of Belmont, said in a statement that EGLE’s regulations were a relief after her neighborhood’s PFAS-contaminated drinking water was identified. 

“Our community on House Street had some of the highest levels of PFAS in our drinking water in the state, so we were encouraged when Michigan finally passed these limits to help protect us from these toxic chemicals in our drinking water,” Wynn-Stelt said. 

In Michigan, EGLE estimates there are as many as 11,300 sites contaminated by PFAS. The department also reports that about 1.5 million Michiganders have been drinking from water sources contaminated by the chemicals.

After the court’s ruling and in the face of a possible appeal to the state Supreme Court, Wynn-Stelt said she’s concerned about other communities around the state being impacted by PFAS in the same way that hers was. 

“3M’s attempt to dismantle these standards now, when we are making real progress on identifying toxic PFAS contamination and protecting our drinking water, is deplorable,” Wynn-Stelt said. “PFAS contamination is impacting people’s lives across the state, and the drinking water standards are a critical step to protecting others from being poisoned.”