Forever chemicals, and suing 3M for PFAS pollution in Europe. A flag on applicable law.

On Friday, together with my learned colleague at both Bar and Faculty Isabelle Larmuseau, I was asked to put my environmental law hat on at the Flemish Parliament. I was heard  on the current scandal hitting Flanders following PFAS (‘forever chemicals’) emissions by 3 M at the port of Antwerp. For background to PFAS see here.

Isabelle’s slidedeck for same is here (updated at 09:28 on 31 August to correct earlier pdf which contained an earlier version of the slides), and mine here. Both are in Dutch, with Isabelle’s focusing on the Flemish environmental law angle (albeit with strong EU law influence, necessarily) and mine on the EU and international law context).

Focus of the debate is on environmental /public health law however for my conflicts followers there is a treat. A civil law suit by Belgian and /or other [the port of Antwerp is very close for instance to the Dutch border. Emissions in air, water and soil (for the latter, particularly if exported) clearly impact Dutch citisens, say] claimants against 3M’s Belgian corporate presence is easily pursued both in Belgium (Article 4 Brussels Ia) and in other Member States (Article 7(2) locus damni). Residual private international law in all these States would fairly straightforwardly allow for the suit to be extended to 3M’s corporate mother, based at St Paul, Minnesota.

The more exciting bit is applicable law. The impact of common US (State) law on forever chemicals suits is well documented. Despite EU courts not willing to apply the punitive damages elements of these suits, an application of the other elements of US tort law may well be very attractive to claimants here. Those US laws are certainly within reach of claimants, using Article 7 Rome II. There is no question the damage ‘arises out of’ environmental damage (unlike the hesitation in Begum v Maran). There is certainly merit in the suggestion that locus delicti commissi is in St Paul, Minessota. Like with its fellow manufacturers and industrial users of PFAS, 3M’s worldwide grip on corporate communication and legal strategy on the issue is tight. More importantly, the decision tree on the manufacture, use and emissions of PFAS is arguably equally located at holding level. Reference here can be made to the relevance of Shell’s holding policy in lex causae determination in the recent climate ruling.

Clearly, via A17 Rome II, Flemish and of course European environmental law would play a role (cue Isabelle’s slidedeck for an excellent starter).

A collective action procedure in say The Netherlands in my view would be an ideal strategy to test these most murky waters.

Geert.

EU Private International Law, 3rd. ed. 2021, Chapter 4, Heading 4.6.3 (4.54 ff).

Our scoping study on a principle of ‘essential use’ in international and European regulatory (particularly chemicals) law.

Update 1 March 2021 the paper has now been published  Transnational Environmental law – open acces.

Update 15 May 2020 see the ECHA consultation on PFAS regulation launched this very week.

With Kathleen Garnett I have co-authored a paper where we scope the ‘essential uses’ approach to product regulation, particularly in chemicals.

Could calls for the stricter regulation of one particular type of chemical herald the introduction of a new (or not) ‘principle’ in international and EU regulatory law, namely that of ‘essential use’ as a precondition for market authorisation?

The concept of ‘essential use’ or ‘non-essential use’ has been referenced in a number of EU policy papers. Kathleen and I focus on Per- and polyfluoroalkyl substances (‘PFAS’)  in chemicals legislation and firstly, map the concept of ‘essential use’ in international and EU law; further, discuss its limited application in the case-law of the European Court of Justice; and, before we conclude, carry out a preliminary investigation as to (if it does not currently exist in EU law), whether it might be so included de lege ferenda.

Happy reading. We are submitting to journal.

Geert, Kathleen.