The LMA Regulatory team is pleased to provide a summary of the discussions from the latest LMA Emerging Litigation Forum. Previously known as the Environment and Climate Litigation Committee, the forum is now open to wider LMA members to attend. The next forum will take place in the New Year.
The session covered two main topics: PFAS claims outside the US and emerging UK environmental claim trends, presented by Aidan Thomas, Partner, Weightmans, London, and PFAS litigation in the US, presented by James Sanders, Partner, Clyde & Co, Chicago.
In this newsletter, we cover the following:
UK trends
Increasing global PFAS restrictions
US PFAS litigation update
Industries at risk
Insurance challenges
PFAS claims outside the US: Emerging UK environmental claim trends – Aidan Thomas, Partner, Weightmans, London
Aidan Thomas began his presentation by noting that the EU are increasing regulatory controls on PFAS used in products and on water contamination from PFAS. The EU is considering a general ban on PFAS, with existing restrictions and stricter standards already in place in some countries, such as France, particularly in relation to cosmetics and drinking water. The UK is introducing controls on manufacturing and usage at a slower pace compared to the EU and it does not currently have specific standards for drinking water.
The threat of litigation concerning PFAS in the UK is still developing. In the EU, significant legal action has already taken place, including class actions, government lawsuits and criminal convictions for contamination and regulatory concealment. One example cited by Mr Thomas was a ruling from an Italian court that sentenced 11 executives from the chemical company Miteni to imprisonment for their involvement in PFAS pollution. Sentences ranged from 2 years 8 months to 17 years 6 months, and damages totalling €75 million were awarded, split between Italy’s Ministry of the Environment, the Veneto Region and 300 civil claimants.
In the UK, personal injury claims for PFAS exposure face significant hurdles due to the difficulty in proving foreseeability and causation; it is hard to link illness to a specific PFAS source. Property damage claims, usually brought under the tort of private nuisance, are more straightforward if the claimant has a legal interest in the land, especially where water rights and pollution are involved, since polluted water may qualify as property damage. In the UK, regulatory liability imposed by environmental regulators can arise under several regimes, most notably the contaminated land and environmental permitting regimes.
These frameworks empower environmental regulators to identify contaminated sites, determine responsibility for pollution and ensure appropriate remediation of the site. Liability may be imposed not only on operators whose activities have directly or indirectly contributed to the presence of PFAS, but also on innocent landowners to restore or remove pollution. The legal thresholds for action remain unclear and potential enforcement powers are significant. It is thought that the application of regulatory regimes and powers will lead to surprises for some operators, especially those who are unaware of PFAS.
Horizon scanning
Aidan highlighted that historic contractual arrangements that transferred environmental liability, which were once considered low risk, are now under increased scrutiny due to emerging PFAS concerns. The effectiveness of these transfers will depend on how the contracts were drafted, with potential for both relief and regret. Claimant lawyers are likely to push for expanded liability laws, particularly around public and private nuisance to widen the scope of who can bring claims. Water pollution cases similar to the Manchester Ship Canal or River Wye cases are expected to emerge first, potentially paving the way for future personal injury claims. Regulatory clean-up actions are set to become more frequent and questions of insurance coverage for remediation are likely to arise in time.
History of environmental group actions in the UK
Historically, environmental group actions in the UK have been challenging for claimants due to the financial risks involved and the limited potential damages. However, cost reforms introduced in 1990 and further changes in 2013 have made such claims less risky and helped to balance the legal playing field.
Increasingly, issues such as PFAS will come under scrutiny, which is likely to lead to more claims. Collective proceedings have been brought under the Competitions Act 1998 against water companies accused of underreporting sewage spills and overcharging customers due to inaccurate reporting. These claims seek to recover excess charges paid by customers as a result. The following is an example of such a case, R (River Action UK) v Environment Agency (May 2024). The following are examples of such cases:
There are millions of potential claimants, each seeking relatively small sums, with the total claim valued at around £800 million. The collective action was initially dismissed by the Competition Appeal Tribunal earlier this year (2025), but the decision is being appealed with the hearing scheduled for February 2026.
River Wye pollution claim
Four thousand claimants allege that they have suffered damage from pollution caused by Welsh Water and two food companies. They state that the pollution has harmed local businesses, property values and amenities around the River Wye. The claims include negligence, several types of nuisance, trespass and breach of s73(6) of the Environmental Protection Act 1990. The pollution is attributed to run-off from chicken manure, sewage sludge and direct sewage discharge. This case is considered the UK’s largest environmental pollution claim due to the number of claimants, its geographic scope and the total damages sought.
Points to consider on the River Wye group action
There is uncertainty regarding the strength and validity of the individual claims as well as how claimants are managing their costs risk. Notably, the claims against water companies differ from those against food companies, with causation likely to be a key issue for the latter. The outcome of these water pollution cases could influence future environmental litigation in the UK, particularly claims against emitters.
PFAS litigation in the US – James Sanders, Partner, Clyde & Co, Chicago
James Sanders began the presentation on PFAS in the US by noting that PFAS is currently a prominent issue with substantial attention on related litigation. He also observed that four to five years ago, PFAS was not widely discussed or well understood, so this is a rapidly changing landscape.
The majority of PFAS litigation currently pending in the US relates to the Aqueous Film Forming Foam (AFFF) multidistrict litigation (MDL), which has seen a surge of lawsuits over the past five to six years.
AFFF, commonly used by firefighters to combat fires, contains PFAS, and its use has resulted in exposure for individuals and contamination of water supplies. The litigation encompasses four main categories of claims: municipalities seeking compensation for the costs of cleaning up contaminated drinking water, bodily injury claims from firefighters and local residents, property damage claims and claims relating to natural resources.
The most prominent and closely watched cases concern water contamination and bodily injury, both of which have been consolidated for pretrial proceedings in the US District Court for the District of South Carolina. Despite the consolidation, these are not class actions but remain separate lawsuits with more than 10,000 filings and more than 120,000 individual bodily injury claimants.
Water supplier claims were prioritised for early proceedings, with discovery focusing on the extent of municipal water supply contamination. Major settlements have already been reached, including a US$10 billion settlement with 3M and more than US$1 billion with DuPont, which reflects the scale of financial liability. While defendants have shown a greater willingness to settle water claims, bodily injury claims have been narrowed to a select group of diseases scientifically linked to PFAS exposure, most notably kidney cancer, a common and serious illness in the US. The outcome of bellwether trials, particularly those concerning kidney cancer, is highly anticipated, as a successful link between PFAS and disease could dramatically increase the volume of claims, which may cause bodily injury litigation over PFAS to resemble historic asbestos litigation in scale and impact.
There is an increase in major companies, among others, initiating these lawsuits, with the defendant companies responding by pursuing coverage litigation. A common feature in these cases is significant legal wrangling over the choice of court, as parties seek to file in jurisdictions perceived as most favourable to their interests. Consequently, there are numerous disputes regarding where coverage litigation should actually be heard. Most of these cases are still ongoing and yet to be resolved.
Similarities between PFAS and asbestos
PFAS litigation is distinguished from other mass torts, such as those involving talc, opioids or ethylene oxide (EtO), by the breadth of industries and companies implicated rather than being confined to a specific industry or sector.
The potential latency period for PFAS-related health effects may span decades, raising complex issues regarding insurance coverage that can date back more than fifty years.
This has triggered extensive disputes over commercial general-liability (CGL) policies and contributed to widespread policy exclusions being introduced for PFAS-related claims. PFAS litigation also poses serious corporate challenges, including issues of corporate successorship (that is, the original company may have been sold or taken over) and the threat of bankruptcy even for major corporations. The extensive public attention surrounding PFAS toxicity amplifies these risks and underscores the financial and reputational stakes involved.
Difference between PFAS and asbestos
Unlike asbestos, where mesothelioma is exclusively caused by asbestos exposure, the link between PFAS and diseases such as kidney cancer is far more disputed, as these illnesses often have multiple potential causes or may arise without a clear cause at all. In the US, the strength of scientific evidence, or the lack of it, has not always been a barrier to large numbers of claims and significant damages, as seen in talc litigation. PFAS is also far more widespread than asbestos, contaminating water, soil and the broader environment, whereas asbestos exposure is more localised.
While mesothelioma is a uniformly fatal disease, the health conditions associated with PFAS exposure generally have lower mortality rates. Importantly, the pool of potential claimants in PFAS litigation is much larger, with far more individuals suffering from cancers potentially linked to PFAS than from mesothelioma, which reflects the broader public-health impact and the scale of claims involved. Permanent disablement can, however, lead to larger claims.
Enforcement actions and litigation relating to PFAS are set to continue, particularly as the outcome of key bodily-injury bellwether trials will be pivotal for future claims. All parties with potential exposure should closely monitor these developments, as successful bellwether cases are likely to trigger a substantial increase in claims and attract law firms to undertake more work in this area, which is currently serviced by only a few specialists.
The litigation is likely to resemble asbestos claims, starting with the easiest cases before moving on to target any remaining companies as those initial cases are settled. There is also a possibility that defunct or dissolved companies may be revived and receivers appointed to address liabilities.
What industries will be affected?
Industries likely to be most affected by PFAS litigation and regulatory scrutiny include chemical, carpet and textile manufacturers, particularly those concentrated in northwest Georgia and the Carolinas, as well as companies involved in both industrial and household textiles. Apparel brands, especially those producing fire, water, stain or chemical-resistant gear are also at risk. Other impacted sectors include metal plating, food and drink packaging, medical-device manufacturing, construction (including paints, sealants and waterproofing), automotive parts, the paper industry, cosmetics and personal-care products, and a wide range of miscellaneous household items. The broad presence of PFAS in these industries highlights the extensive reach and potential liability associated with these substances.
What insurance coverage issues are being foreseen?
A central challenge in PFAS litigation relates to pollution exclusions, echoing many of the complications previously encountered in asbestos cases, such as issues with allocation, exhaustion and trigger of coverage. The search for lost or missing insurance policies, particularly those issued prior to the widespread digitisation of records in the 2000s, is a recurring obstacle, as is determining retroactive dates for pollution policies. Questions arise regarding aggregate limits for products-completed operations and whether prior settlements with insureds extend to PFAS-related claims.
There is also ongoing debate about the inclusion of post-1985 policies that were implicated in settlements prompted by asbestos litigation and whether prior policy erosion or exhaustion can be substantiated by documenting payments made during the relevant period, thereby showing that coverage has been exhausted through private settlements.
Questions from the audience
1. How have pollution exclusions worked in the courts in the US?
US courts have generally found that claims involving environmental pollution, such as those brought by water suppliers over PFAS contamination, are barred by pollution exclusions in insurance policies. However, there remains some uncertainty regarding direct exposure claims, such as those made by firefighters exposed to AFFF. In these cases, certain courts have determined that the pollution exclusion does not apply if the exposure is considered direct (for example, through handling the substance), rather than environmental.
2. Is there any particular concern about layering these exclusions, or is this considered acceptable from an underwriting perspective?
The addition of a specific PFAS exclusion to an insurance policy does not create ambiguity with existing pollution exclusions, nor does it allow insureds to use later policy changes against the insurer. US courts have generally upheld this position, confirming that including both exclusions is acceptable and does not affect the validity of the original pollution exclusion. From an underwriting perspective, it is considered prudent to include a PFAS exclusion to clearly address potential liabilities and the benefits outweigh any minor risk of dispute.
3. Professional indemnity claims – are they linked to the cancers mentioned in the presentation, or if somebody had something else like an autoimmune disease, is that also excluded?
Currently, the court and the MDL are only permitting claims related to the six diseases identified in the presentation. Claims for conditions outside this list have been dismissed without prejudice, meaning they are not permanently barred. If future scientific evidence establishes a causal link to other diseases, individuals may bring such claims at that point. At present, there is no scientific basis to support these additional claims.
If you would like to discuss any of the topics in this ELF update, please contact John Levett.
John Levett
Head of Regulatory Affairs
john.levett@lmalloyds.com
