The Pentagon is attempting to avoid liability in lawsuits related to PFAS contamination, citing legal immunity. These lawsuits, filed by local governments, businesses, and property owners, allege that military use of Class B firefighting foam caused widespread contamination. 

PFAS, also known as “forever chemicals,” are linked to serious health issues, including cancer and immune disorders. The government’s defense rests on legal protections under the Federal Tort Claims Act. 

Legal experts argue that this immunity could prevent affected communities from seeking justice. In this article we’ll discuss whether legal immunity is protecting the Pentagon and what it means for the future of PFAS litigation.

The Role of PFAS in Military Firefighting Foam

PFAS were initially developed by DuPont and later used in military firefighting foam, otherwise known as aqueous film-forming foam (AFFF). This foam was adopted by the Pentagon in the 1960s to combat high-temperature fires on military bases. 

The foam became a staple at U.S. military sites, fire stations, and civilian airports. However, it was discovered that PFAS chemicals do not break down naturally in the environment. 

NIH notes that people are exposed to PFAS mainly through contaminated water, food, products, or polluted air. These chemicals break down slowly, leading to repeated exposure over time in humans and animals. As a result, blood levels of certain PFAS accumulate and persist, creating long-term health risks.

Today, PFAS contamination is a significant environmental issue that poses long-term health risks to those exposed.

Are there safer alternatives to PFAS in firefighting foam?

The search for PFAS-free firefighting foams is underway, with some alternatives showing promise. New formulations are designed to reduce toxicity and environmental impact while maintaining firefighting effectiveness. However, ensuring these alternatives meet military needs without compromising safety remains a challenge.

The Pentagon’s Defense Against Lawsuits

The Department of Justice claims that the Pentagon should be immune from PFAS lawsuits under the Federal Tort Claims Act. This law grants immunity to the government in certain circumstances, protecting it from liability for actions taken by federal employees.

The EPA states that the Federal Tort Claims Act (FTCA), enacted in 1946, allows compensation for personal injury or property damage. It lets individuals sue the U.S. government if a federal employee’s actions caused harm. However, the FTCA doesn’t allow suing government entities directly, only individual employees for negligence.

The Pentagon argues that decisions regarding AFFF were made at the discretion of military personnel. The government also claims that the use of AFFF was in line with military protocols and national security needs. 

As a result, the government contends that it should not be held accountable for the contamination caused by these chemicals. Critics argue that this defense is a way to avoid responsibility for the harm caused to local communities.

What are the implications of immunity for future lawsuits?

Legal immunity may set a precedent for future lawsuits, making it harder for plaintiffs to sue the government. If immunity is upheld, communities affected by PFAS contamination may struggle to obtain compensation. This legal defense could also influence how future environmental lawsuits against the Pentagon are handled.

The Discretionary Function Exemption

A key component of the Pentagon’s defense is the “discretionary function” exemption within the Federal Tort Claims Act. This exemption protects federal employees from liability when they make decisions based on their professional judgment. 

The Pentagon argues that military personnel were following their judgment when using AFFF foam. Legal experts point out that nearly every military decision involves some form of discretion. 

However, critics argue that the harmful effects of PFAS were well-known by the time widespread use began. They contend that the decision to continue using the foam without addressing health concerns shows a failure of judgment.

How can courts interpret the discretionary function exemption in PFAS cases?

Courts will likely evaluate whether the use of AFFF was a discretionary decision within military operations. They will weigh the military’s national security concerns against the known health risks of PFAS. The outcome of these cases could set a precedent for future lawsuits involving government decisions.

Impact on Affected Communities

Communities near military bases have suffered from PFAS contamination, with many facing health issues. The contamination has affected local water supplies and made it difficult for people to access clean water. In addition to health concerns, the financial burden of cleanup has fallen on local governments. 

Colorado Newsline mentions that the Pentagon has identified over 700 sites potentially contaminated by PFAS in soil and groundwater. Extensive testing is underway to assess the full scope of contamination. Cleanup efforts are projected to cost billions as contamination spreads across military installations nationwide.

According to TorHoerman Law, lawsuits against the Pentagon aim to secure compensation for the victims. The government’s defense strategy has delayed relief for communities impacted by PFAS contamination. This legal battle continues to extend the environmental crisis affecting numerous communities nationwide.

A December 2024 update from Lawsuit Legal News highlights that the first bellwether trial is set for October 2025, focusing on expert witness testimony. 

The key issue is whether experts link the AFFF foam lawsuit can link PFAS exposure to plaintiffs’ medical conditions. Settlement talks will continue, but the defendants’ position depends on expert testimony approval.

How does PFAS contamination affect local economies?

PFAS contamination can severely impact local economies by reducing property values and affecting businesses. People may be hesitant to live or invest in areas with known contamination risks. This economic fallout exacerbates the challenges faced by communities dealing with environmental and health crises.

The Impact on Military Readiness and National Security

The Pentagon argues that limiting access to PFAS chemicals could jeopardize national security and military readiness. AFFF has long been considered an essential tool for effectively responding to high-temperature fires, particularly on military ships. 

The DoD has repeatedly emphasized that the utility of PFAS in firefighting is critical for safeguarding personnel and equipment. However, critics contend that the continued use of these harmful chemicals undermines public health and the environment.

The debate between national security and environmental health has become a focal point in the PFAS lawsuits. As the military phases out AFFF, finding safer alternatives without compromising security remains a key challenge.

Are there viable alternatives to PFAS that don’t compromise security?

While alternatives to PFAS are being developed, none have been proven to fully replace AFFF in military settings. The military continues to search for alternatives that can meet operational requirements without harming the environment. However, these alternatives must also undergo extensive testing before being adopted widely.

The Pentagon’s use of legal immunity in PFAS lawsuits is hindering justice for affected communities. These “forever chemicals” cause severe environmental and health issues, yet the military cites national security. While concerns are valid, ignoring long-term consequences like environmental damage and public health crises is risky. 

This legal battle emphasizes the need for a balance between military readiness and environmental protection. Addressing PFAS contamination requires finding alternatives that safeguard both public health and national security. Without action, local economies will face increasing costs for cleanup and health-related issues.