PFAS explained – What forever chemicals mean for clean energy dispute risks

"PFAS [per-and polyfluoroalkyl substances] are a class of man-made chemicals used in various industries and in commercial and consumer products. They're extremely durable and can make materials oilproof, waterproof, frictionless and stain resistant. These qualities and others make them critical to the energy transition; they're frequently used in—and sometimes fundamental to—solar panels, wind turbines and hydrogen membranes and even the processes used to obtain lithium for lithium-ion batteries, as well as in the exploitation of more traditional energy sources.

This awareness has resulted in new regulatory enforcement efforts in the EU and US, and increased pushes for specific regulation of PFAS. For example, in the EU, they’ve proposed a complete ban on PFAS—with a definition of PFAS significantly wider than the definition used by many other authorities—although the current expectation is that any ban would come with significant carve outs and a narrower definition with time to phase-in.  Notably, some of the most vocal objections to the proposed ban have come from the energy sector, who object that the proposed ban would effectively grind the energy transition to a halt.

“In the US, regulatory bans are primarily on a state-by-state basis and there isn’t a wider PFAS ban being considered on the federal level at present; however, come May 2025, sellers, manufacturers and importers of PFAS and products containing PFAS over the last decade must publicly disclose their use of PFAS to the US Environmental Protection Agency, which comes along with due diligence requirements that will flow through not only to US-based businesses but international suppliers as well.  These examples aren’t the culmination of the latest push for PFAS regulation, but better characterized as initial steps toward what likely will be more robust regulation of a chemical class that has not been subject to significant regulation in the past.

"Businesses need to be aware there is the potential for liability risk when working with PFAS—intentionally or unintentionally—in processes and products. Environmental contamination of water or soil can be extremely expensive to remediate.  A pound of PFOA [a type of PFAS] might cost about $1,000 to purchase, but would cost millions to remove from a water supply. In addition, there have been lawsuits—mostly in the US—relating to alleged physical and economic injuries arising from PFAS in products or services and related to product claims and securities disclosures.

“Ultimately PFAS likely are more helpful than harmful. They're vital to the energy transition and, when used in energy transition applications, there is a low risk of harm to humans or contamination risk. But the regulatory and litigation environments are becoming increasingly hostile to PFAS—particularly in the US, but also in the EU and elsewhere, and it’s worth asking now whether PFAS are in your value chain, what, if any, risks arise out of the use of PFAS, and what you can do to avoid or mitigate those risks today."