Force for Nature

Bill Jackson has taken on cases involving Agent Orange and the Deepwater spill; this one is bigger

Published in 2019 Texas Super Lawyers Magazine

Bill Jackson says the case he’s currently handling is probably his biggest ever. That’s a high bar for someone who helped win $355 million in settlements over Agent Orange contamination of the Passaic River in New Jersey in 2014, then the next year made that amount look tiny by helping Louisiana recover billions in the $20 billion global settlement over the Deepwater Horizon oil spill.

“I guess, throughout my career,” he says, “each case, as I did it, seemed like I would never get anything larger. And then the next one came.”

Jackson, managing partner at Kelley Drye & Warren’s Houston office and co-chair of its national environmental law group, is now taking on DuPont, 3M and a DuPont spinoff called Chemours.

The family of chemicals at the heart of the case—resistant to heat, water and oil—are referred to by the acronym PFAS, but most of us know at least one of the products that brought them into our homes as Teflon. There are more. Many more.

PFAS were used for decades in the manufacture of products ranging from Scotchgard to Hush Puppies shoes to firefighting foam used at military bases and airports. It’s in our cookware, clothing, cars. In carpets and old microwave popcorn bags.

And us.

“It’s safe to say almost everyone has these compounds in their blood at some level,” says Jackson.

He’s not exaggerating. In the largest study, the chemicals showed up in 99 percent of subjects.

“Our state of Ohio complaint alleges that DuPont knew that this stuff was toxic and causing birth defects for its female workers in their plants in the 1970s,” Jackson says. “They were testing their neighbors’ water around the Parkersburg, West Virginia, facility in the ’80s and in the ’90s. By 2002, 3M got out of the market, and documents suggest it’s because they found them toxic.

“DuPont decided that, if they couldn’t buy the stock from 3M, they’d start making feedstock for themselves at their plant in North Carolina, and they continued making the stuff and selling it.” In 2015, Jackson adds, DuPont signed an EPA agreement to stop making PFOA.

Scientists have linked PFAS chemicals to testicular cancer, kidney cancer, ulcerative colitis, pregnancy with hypertension and thyroid disease. Newer studies found a link to endocrine issues. The EPA has set guidance levels for only two of the many types of PFAS chemicals (PFOA and PFOS), and they are not enforceable. And though those two chemicals are no longer being manufactured, they remain in many homes. Also, some states have raised concerns over the newer generation of chemicals now being made to replace those two.

At its heart, the case bears similarity to Jackson’s earlier cases, including one involving DDT and the Port of Houston, the Deepwater Horizon spill, and Agent Orange. But this one is different: Because the chemicals’ uses were so broad, there’s no telling who might be affected. Or where.

“There were countless industrial applications of these chemicals,” he says, “and in most instances, the users didn’t even know the chemicals were being released.” Jackson says hundreds of water systems across the country have been affected.

In Michigan, PFAS were used at tanneries and plating businesses. More than 11,000 sites in just that state may be contaminated, according to an April 2019 article in the Detroit Free Press. The levels were so high in 17 rivers, lakes, streams and ponds that the state issued “do not eat” fish warnings, or recommended limited consumption.

“What’s really unusual about this contamination is it travels through the air,” Jackson says. “It would flow out of the stacks. And it’s very water-soluble. So it would go through the air, it would mix with either rain or humidity and fall out onto the surface, and then, across years, just with rain water, it would travel all the way down to groundwater systems.”

And once it gets there, it stays. PFAS are biopersistent, meaning they don’t break down in the environment. Ever.

“It just moves so quickly and it doesn’t go away,” Jackson says.

In a 2016 article in Delaware’s The News Journal, DuPont maintained that industry knowledge of the dangers to humans evolved over the years and that DuPont created safety guidelines for workers’ exposure.

Jackson is already representing Ohio and New Jersey in their environmental cleanup cases. He’s on the steering committee for a growing multi-district litigation over the firefighting foam. And his firm was retained in June by New Hampshire to help handle suits involving environmental contamination from PFAS in widespread uses including firefighting foam.

Last year, Minnesota got an $850 million settlement from 3M to clean up PFAS; the year before, DuPont and Chemours settled for $671 million over leakage of the chemicals from the West Virginia plant.

So, it’s entirely possible that this litigation will be the biggest he’s ever handled. And the longest lasting. Says Jackson, “I think the level of interest in this contamination and these compounds—because it is in consumer products, it’s everywhere—it’s going to be bigger and bigger.”

Largest Recoveries on Which Bill Jackson Has Worked

  • Lead counsel for New Jersey on Passaic River case—$355 million recovered for NJ, including $67 million for restoration projects—like Newark’s Riverfront Park, with boardwalk, river access and bike trail—plus $400 million against future costs of remediating the Passaic River.
  • Counsel for Louisiana and Louisiana Oil Spill Coordinator’s Office in BP Deepwater Horizon case—part of $20.8 billion environmental settlement with BP, the largest in history.
  • Counsel for Port of Houston Authority in GB Biosciences case—settled for $100 million total value for the Port.
  • Co-national counsel for Union Pacific Railroad on Environmental Cost-Recovery Docket across 20 states: tens of millions for UPRR.
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