How criminology can support environmental health: the case of PFAS

Abstract

This commentary argues that the field of criminology can aid in addressing PFAS (per- and polyfluoroalkyl substances) pollution, providing levers to achieve public health aims of drastically lowering and abating new PFAS emissions while addressing historic exposure. Based on a European example of the large DuPont de Nemours (now Chemours) industrial facility in Dordrecht, the Netherlands, we frame the history of PFAS exposures as a crime. We discuss how PFAS pollution emerged in part due to knowledge asymmetries, perpetuated by the close alignment of corporate and governmental interests, and the fragmentation of regulatory enforcement, both historic and contemporary.

Introduction

On 26 September 2023, the District Court of Rotterdam (the Netherlands) rendered a historic intermediate ruling in a civil case brought by four Dutch municipalities (Dordrecht, Papendrecht, Sliedrecht, Molenlanden) against the companies DuPont de Nemours and Chemours for harm caused by emissions of PFAS (per- and polyfluoroalkyl substances) [1]. The court ruled that the companies acted unlawfully and committed a tortious act: From 1984 until 1998, they failed to sufficiently inform the licensing authority and municipalities about the risks of PFOA (perfluorooctanoic acid), while neglecting to take the necessary steps to abate emissions. This happened despite existing internal industry concerns about the chemical’s toxicity and its effects based on exposure data dating back to the 1960 s [2]. The court found them civilly liable for the damage caused by emitting PFAS – i.e. responsible for the costs of decontamination – even for those time periods in which they had permits to emit PFAS via air or water. Class action lawsuits followed, and criminal investigations are being conducted into whether the companies and their executives unlawfully endangered public health.

Public concern regarding PFAS has rapidly increased since their health harms have become unequivocally clear. Studies have correlated PFAS-exposure with disruptions in fertility, fetal development, liver, thyroid, and other endocrine functions, the development of testicular and kidney cancer, and immune system function [3]. The long-term societal impacts, such as healthcare costs and environmental decontamination costs (water, soil, air) in Europe alone are estimated at 95 billion euros over 20 years for legacy PFAS and 2 trillion euros over 20 years for all PFAS [4].

Based on recent legal developments, we suggest that the field of criminology can supplement environmental health to advance PFAS regulation and abatement, in particular, and global planetary health, in general [5]. The role of courts to protect public health has considerable precedent in cases of climate change litigation and cases about more specific environmental and health hazards such as asbestos and tobacco. There is growing acceptance of using corporate environmental crime charges to hold polluters responsible. Even if such lawsuits far from recoup the total social costs, this fact should not deter the public from holding these companies increasingly accountable, as evidenced through Robert Bilott’s [6] now famous work initiating PFAS litigation. Similar to the waves of court challenges to pollution by agrichemicals or fossil fuels, legal settlements regarding C-8 (PFOAs, one chemical in the larger PFAS class) took place in the United States, resolving in a 700 million US dollar settlement agreement. This settlement meant DuPont was required to pay for the C-8 Science Panel which developed essential knowledge about the public health impacts of PFAS [7]. 3M, DuPont, and other companies’ subsequent settlements for cleaning up PFAS-contaminated groundwater amounted to 12 billion US dollars. A recent criminal court verdict sentenced 11 executives of the Italian chemical plant Miteni to a total of 141 years of imprisonment and 57 million euro in damages due to PFAS contamination of groundwater [8]. The release of previously secret industry documents following from these court cases spurred further global scientific, journalistic and public scrutiny into PFAS. These lawsuits and investigations have acted as lightning rods for mobilizing civil society, investigative journalist exposés, and the drafting of environmental and public health policy and regulation to confront these chemicals.

This commentary focuses on the Dutch case of DuPont’s facilities in Dordrecht (also known as Dordrecht Works), beginning operation in 1962 and expanded in the 1980 s, to become the second largest PFOA-user by the 1990 s [9]. In 2012, PFOA was replaced by DuPont’s trademarked Gen-X technology, substituting PFOA for HFPO-DA (hexafluoropropylene oxide dimer acid, another PFAS) and, in 2015, the chemical division of this plant became Chemours. Our criminological lens frames the history of PFAS exposures as state-facilitated corporate crime, discussing how PFAS pollution emerged in part due to knowledge asymmetries, and was perpetuated by close alignment of corporate and governmental interests abetted by historic and contemporary fragmentation in regulatory enforcement. Through this case study, we show how insights into criminogenic dynamics can complement public health approaches to provide levers to intervene in environmental health crises.

Framing historic pollution as a crime

Criminology studies crime definitions, causes as well as responses. Traditionally, criminology focused on crimes as defined by criminal law, such as theft or physical assault, overlooking various harmful activities or types of regulatory non-compliance. Critical criminology, however, studies a wider range of social harms embedded in structural forces in society [5]. Rather than capitulating to the industry’s framing of pollution or harms as unfortunate, unforeseen byproducts of doing business, critical criminology frames persistent chemical pollution as behavior worthy of defining and regulating as crime. As revealed in the above-mentioned Dutch civil court case, some permits might have been granted under false pretenses, with industry failing to disclose all they knew to the regulators. Additionally, United Nations Special Rapporteurs on Toxins and Human Rights refer to a “blatant disregard for human rights and environmental protections” by DuPont, Chemours, and Corteva for releasing PFAS in Fayetteville, North Carolina, despite knowledge of the chemicals’ harm, while also calling out the Dutch and US governments for granting permits for the transport and use of these Gen-X related chemicals [10].

Framing historic pollution as a crime does not solely refer to these adjudicated law violations, but also to a wider range of social and environmental harms that follow from the behavior of powerful economic or political actors who can influence regulation and (scientific) discourse [5, 11]. Such behavior has been termed “under-criminalized” [12], “regulated pollution” [13] or “lawful but awful” [14], as some (PFAS) pollution falls within the boundaries of issued permits. Environmental crime can refer to isolated illegal acts, yet more often is integrated into everyday legal and licensed business activities. Pollution that exceeds certain thresholds occurs in the context of polluting business activities that are in principle otherwise state sanctioned. For this reason, environmental non-compliance is often not framed per se as environmental ‘crime’. As pollution occurs gradually rather than saltationally, early intervention becomes difficult against the default of legally permitted environmental harm.

Knowledge asymmetries and economic interests

When explaining why crime occurs, criminologists look at three criminogenic dimensions. At the core of any crime lies a combination of opportunity, motivation, and lack of informed oversight. Literature on state-corporate crime shows that explanations can manifest on individual, organizational and societal levels, ranging from management pressure and reward structures to the ignorance of both regulators and society at large [11]. An analyses of (PFAS) pollution based on this state-corporate crime framework provides insights into how overlapping public and private interests reduce critical government oversight of polluting corporations and can leave open perverse economic incentives permitting harmful behavior to continue unchallenged.

For PFAS, Richter, Cordner and Brown [2] find that American chemical manufacturers like DuPont maintained an information monopoly by not sharing internal studies on the health effects of PFOA. This information asymmetry between industry and regulators, but also towards society at large, is institutionalized through regulatory frameworks. This situation of ‘selective ignorance’ explains the slow or absent oversight and non-stringent permitting process [2]. Similar dynamics played out in DuPont Dordrecht’s licensing process, with the Dutch government depending on industry for information about the unprecedented physical, chemical and toxicological characteristics of what was then – to the government – an unknown substance with unknown toxicity.

In the 1980s, DuPont internally monitored PFOA via its C8 Program, in all its facilities, and based on their findings of toxicity, searched for a replacement [15]. Rather than replace it, they doubled-down. Shapira and Zingales [16], who studied the US DuPont case, conclude that PFOA pollution was the result of a rational decision: the deterrent effect of liability, oversight, and reputational damage did not outweigh the benefits of continuing to use PFOA in production lines. According to internal company discussions, as evident from a 1984 meeting at the DuPont headquarters, in their discussions on the future of PFOA, the company understood that from a legal and medical point of view, its “total elimination” was required. From a business perspective, however, they concluded that reducing exposures should be accomplished “in a way that does not hurt economically” ([17], p.2). During that same decade, Dordrecht Works expanded.

Economic and environmental health interests were not only weighed within the company but also by the Dutch government. At a meeting at DuPont headquarters, the Dutch Ministry of Economic Affairs discussed the environmental requirements, acknowledging that expansion plans would increase fluorocarbon emissions, but promised to “to jump in” to intervene on DuPont’s behalf with the Ministry of Public Health and the Environment, or the local and regional authorities around Dordrecht Works, if needed [18]. In short, PFAS pollution thus intensified because employment and economic growth took precedence over the legal oversight of industry and the safeguarding of other public interests, such as health and the environment.

Fragmented environmental enforcement and regulation

A frequently mentioned criticism of environmental enforcement is the long-term failure to effectively address industrial pollution despite (public) awareness of the harmful impacts [13]. Quite often, ample early warning signs abound of companies exceeding their permit when emitting (hazardous) substances, while environmental enforcement and regulation remain insufficient, fragmented and slow to respond. When environmental enforcement authorities have limited insight into companies’ (non-)compliance histories, this hampers swifter enforcement than if otherwise such insights were included in the decision-making process.

In the Netherlands, PFAS pollution was exacerbated because of limited knowledge sharing within a fragmented system of environmental regulation and enforcement [13]. Due to the specialization between, and in some cases, even within regulatory bodies, an overall picture of pollution and its associated health and environmental consequences was missing. Given that PFAS is a persistent and mobile organic contaminant, this overarching picture is essential. The exposure route of PFAS is not limited to direct pollution points. Instead, PFAS emissions in the air, groundwater, surface water, and soil find their way to citizens through open water swimming, local vegetable and dairy products, drinking water, and other means.

Dutch environmental enforcement authorities have emphasized they depend on international and European legal frameworks because these determine the permit conditions national or local authorities can impose on industrial facilities [19]. This system has been criticized for its slowness as well as false-negative proneness, and could thus be labelled permissive: it takes an average of seven to nine years to evaluate substances of potential concern and then often several additional years before this determination is reflected in adjusted permits, such as those of Dordrecht Works. Such delays are exacerbated by minor adjustments to a chemical substance requiring additional protracted evaluations. As a result, the system of regulating PFAS one compound at a time rather than as a class cannot keep up with industry’s pace of innovation [20]. The phase-out and introduction of slightly different chemical formulas (such as PFOA replaced by GenX) has therefore been referred to as a regulatory game of ‘chemical whack-a-mole’ [21].

Conclusion

Together, the knowledge asymmetry between industry and regulators, the prioritization of economic over health values stemming from close alignment of corporate and governmental interests, and fragmented regulatory enforcement, explains not only how PFAS exposure could emerge, but also how it continued despite increasing knowledge of likely social and environmental harms. Understanding these dynamics of opportunity, motivation, and lack of informed oversight lies at the core of any crime, including state-facilitated corporate crimes occurring within the confines of permitted business activities. Leveraging the legal consequences of these dynamics are pivotal to holding polluters responsible and protecting public and planetary health.

Authors’ contributions

Both authors contributed equally to the writing of this commentary and approved the submitted manuscript.

Funding

This research was funded by the Erasmus Initiative on Dynamics of Inclusive Prosperity, for both authors. L.B. was additionally supported by the Dutch Sectorplan for Law, and Y.H. was supported by the University of California at San Francisco’s Center to End Corporate Harm.

Data availability

No datasets were generated or analysed during the current study.

Declarations

Ethics approval and consent to participate

This research project was approved by the Ethics Review Committee of Erasmus School of Law, Erasmus University Rotterdam (ETH2223-0244, ETH2223-0286, ETH2425-0392). Clinical trial number: not applicable.

Consent for publication

Not applicable.

Competing interests

The authors confirm no financial or commercial interests and are not involved in legal proceedings about PFAS. Lieselot Bisschop lives within the emission area of Chemours/DuPont Dordrecht. This personal conflict of interest has been included in the ethics applications.