PFAS: The Netherlands opts to wait on 'forever chemicals'

PFAS particles are difficult to break down and spread quickly in the environment. "They persist for an extremely long time in the environment, which is why we call them 'forever chemicals'," Bisschop explains. Even if all emissions stopped today, these substances would remain for generations. The societal costs are enormous. "The long-term consequences for society – such as healthcare costs and the costs of remediating contaminated environments (water, soil, air) – are estimated for Europe alone at €95 billion over 20 years for so-called 'historical PFAS', and €2 trillion for all PFAS, according to the Forever Pollution Project, a collaboration between journalists and scientists."

Government opts to wait for Europe

The government aims to prevent Dutch companies from being more strictly regulated than their European competitors. According to Bisschop, this cautious approach does not come out of nowhere. "Research in the United States shows that the chemical industry maintained a form of 'selective ignorance' about PFAS for decades. This resulted in an information asymmetry between industry and regulators, but also towards society, and was further entrenched through the legal system. This explains why supervision remained slow or even absent, and why permit issuance was lenient."

This caution is also reflected in how PFAS are currently regulated. A significant problem with the current approach is that substances are banned one at a time. The regulatory process can take seven to nine years per substance. "It takes years to conduct scientific research and to prove that a substance is harmful. After that, a lengthy political and legal process follows," says Bisschop. Some PFAS have meanwhile been banned for certain uses, but many are still allowed. According to her, this is a rear-guard action: "A colleague of mine calls it a 'whack-a-mole' game, where one mole pops up, you hit it, and then another appears later."

In the PFAS restriction proposal currently under consideration at the European level, PFAS are therefore being addressed as a group of substances. "So, not banning substances one by one, but an entire group at once. This would break the mechanism whereby new variants repeatedly fall outside the rules, thus better protecting human and environmental health." However, it will still take some time to make formal legislative proposals, making it a long-term process. Some countries, such as Denmark and France, have already amended their national legislation. The Netherlands is waiting for European legislation. Nevertheless, in 2023, three environmental agencies already indicated that they were reaching the limits of their legal powers in attempts to tighten permits.

Legal consequences

In Ars Aequi, Bisschop writes that the presence of PFAS can also lead to significant liability issues, similar to previous cases with asbestos: "Companies may face claims for damages from citizens and governments. In an interim ruling in the case of four municipalities (Sliedrecht, Papendrecht, Dordrecht, Molenlanden) against Chemours/DuPont, the court ruled that the companies – regardless of whether their emissions constituted an unlawful act – are also liable for damage caused during periods when they formally held permits to release PFAS into the air or water."

This line of case law is comparable to the so-called 'fallen tree' jurisprudence. "Just as you have an obligation to remove a tree if it falls in your garden and lands on a neighbour's property, DuPont/Chemours is liable for PFAS damage on municipal sites."

Economic versus public interests

"Administrative law sets the framework for permits and allowed emissions. Looking back at the history of permit issuance, we see that public interests in health and the environment have often been in tension with the economic interests of industry, and sometimes even the government. Combined with fragmentation and poor information sharing within public organisations, and the previously mentioned information asymmetry between government and industry, this explains why supervision and enforcement have sometimes been slow, lenient, or absent," Bisschop says.