Managing environmental risk is always a moving target.  Over the decades, companies have focused on risks associated with hazardous waste, air pollutants, water discharges, and management of various chemicals that could be released to the environment (e.g., Toxic Release Inventory).

Accelerating Environmental Risks?

A recent article in Environment and Energy Leader (E+E Leader) looks at the current environmental liability landscape.  The article states that the issue isn’t about regulatory tightening, it is about “velocity.”  They state, “The pace at which environmental exposure is converting into financial liability, litigation, insurance exclusions, and balance sheet consequences has accelerated significantly in the last 18 months…”

E+E Leader references the Lower Duwamish Waterway, Seattle, Washington, Superfund Settlement.  This settlement included over 100 companies.  The chemicals of concern at this site are Polychlorinated biphenyls (PCBs) and others.

In past decades, companies were focused on issues such as potential PCB liability.  As evidenced above, PCB and other historical environmental liabilities remain, even as new liabilities continue to emerge.

The Environmental Risks Associated with PFAS

In the article, E+E Leader acknowledges that the Superfund structure isn’t new, but that per- and polyfluoroalkyl substance (PFAS) contamination is “expanding the universe of potentially responsible parties.”

Currently, two PFAS are CERCLA (Comprehensive Environmental Response Compensation and Liability Act) hazardous substances:  PFOA (perfluorooctanoic acid) and PFOS (perfluorooctane sulfonate).  As we reported in our September 22, 2025, blog, in what was considered a surprise move, the Trump Administration chose to maintain and defend the CERCLA listing for PFOA and PFOS.

Many real estate portfolios include properties likely affected by PFAS.  While the EPA has consistently stated that it will not pursue “passive receivers,” including municipal landfills and farms that have land-applied biosolids that contain PFAS, this does not negate the potential liability and third-party lawsuits.  Further, it is unclear how lenders may address the potential risks posed by CERCLA hazardous substances on property.

In a 2025 blog by Brown Altman, they state, “With regard to newly regulated contaminants it is important to keep in mind that liability under CERCLA can be applied retroactively for contamination that took place prior to regulation.  As such, for both borrowers and lenders a determination must be made prior to closing whether to incur the additional cost of testing on the assumption that PFAS may in the future become regulated.”

And, of course, we now know that as it currently stands, PFOA and PFOS are regulated under CERCLA.

A lawsuit by the United States Chamber of Commerce is challenging the CERCLA designation.  See our February 3, 2026, blog.

Last fall, Thompson Hine wrote the following regarding the CERCLA listing:  “Because PFOA and PFOS are designated as hazardous substances, entities that have released or may release them into the environment face broad, retroactive, and potentially costly joint and several strict liability under CERCLA.  A major concern surrounding the CERCLA designation is that ‘passive receiver’ entities such as municipal landfills, wastewater utilities, and certain recyclers would face liability for contamination despite not manufacturing or intentionally using these chemicals.”

Environmental Protection Agency (EPA) Administrator Lee Zeldin has stated that the EPA must strike a balance between holding companies responsible for PFAS pollution and protecting passive receivers.

Other Environmental Risks

The E+E Leader article also discusses the risks associated with climate litigation and points out that more than 250 climate-related lawsuits have been filed over the past decade.  Twenty percent of these lawsuits target company directors and officers.

Earlier this year, an article in National Law Review titled “Current Trends in Climate Change Litigation: A Snapshot of Risk and Insurance Considerations” discussed the climate-related litigation as well as the Greenwashing litigation.  See our November 7, 2025, blog post, The Risk of Green Claims.

Historical environmental liabilities remain (e.g., PCBs), while new liabilities, such as PFAS, climate change, greenwashing, microplastics, or other yet-to-be-discovered potential environmental contaminants, may affect environmental liability.

Environmental Expertise

Managing the changing environmental risk landscape requires constant diligence and, at times, legal and technical advice.  Dragun can assist with technical advice.  If you need assistance or have questions, you can contact Jeffrey Bolin, M.S., at 248-932.0228, Ext. 125.

Alan Hahn drafted this blog.  Alan has an undergraduate degree in Environmental Studies and completed a graduate program in Environmental Management.  He has worked in environmental management for more than 45 years.  He has written hundreds of blogs and articles.  His published work includes Michigan Lawyers Weekly, Detroiter, Michigan Forward, GreenStone Partners, Manure Manager Magazine, Progressive Dairy, and HazMat Magazine.

Jeffrey Bolin, M.S., reviewed this blog.  Jeff is a partner and senior scientist at Dragun Corporation.  He is a published author, a frequent speaker, and an expert witness.  His expertise in environmental due diligence, PFAS, vapor intrusion, and site assessments has led to projects in the US, Canada, and overseas.  See Jeff’s Bio.  

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