Michigan appeals court invalidates ‘forever chemical’ rules regulating PFAS in drinking water

LANSING, Mich.—The Michigan Court of Appeals has invalidated rules that regulate permissible levels of "forever chemicals" in drinking water, ruling that the state did not estimate costs for businesses to comply with related groundwater cleanup standards resulting from the new regulations.

The court, in a 2-1 decision released Wednesday and issued Tuesday, affirmed a Court of Claims ruling from November. It was a victory for St. Paul, Minnesota-based 3M Co., which challenged the rules after they were implemented by Gov. Gretchen Whitmer's administration in 2020.

The synthetic compounds known collectively as PFAS, or per- and polyfluorinated substances, are widespread, showing up in consumer products as diverse as nonstick pans, food packaging and water-resistant clothing and making their way into water supplies. They may cause cancer and other health problems.

The Court of Claims had halted the effect of its decision while it was appealed by the state Department of Environment, Great Lakes and Energy. It was not immediately clear if the appeals court's ruling will be paused during the state's likely appeal to the Michigan Supreme Court.

The U.S. Environmental Protection Agency, meanwhile, has proposed the first federal drinking water limits on PFAS. A final decision is expected later this year or in 2024.

Judges Christopher Murray and Michael Gadola said while EGLE identified estimated statewide compliance costs of the proposed drinking water rule on businesses and groups, it did not estimate costs that the changes automatically imposed on groundwater cleanup. Failing to do so, they said, did not comply with state law.

"EGLE's argument that it was not required to estimate the costs to businesses that would necessarily occur under Part 201 because it lacked the necessary information to make an estimate does not save the day as the applicable provisions say otherwise," Murray wrote in an opinion joined by Gadola.

Dissenting Judge Allie Greenleaf Maldonado disagreed, saying the law does not require a regulatory impact statement for one rule to account for "ripple effects in other rules."

The Associated Press contributed.