With anxiety looming over regulation of so-called “forever chemicals,” some industry players have proposed a solution: federal preemption. That was the response voiced by trade associations last month, as they answered an August 15, 2025 request from the Department of Justice and National Economic Council. The two agencies requested industry feedback on “Which State laws significantly burden commerce in other States and between States, thus raising costs unnecessarily and harming markets nationwide.”
This request by the Trump administration garnered more than 200 responses, many voicing concerns over a hot topic: regulation of per- and poly-fluoroalkyl substances (“PFAS”). Those submitting PFAS concerns included representatives of the pharmaceutical industry, vendors of baby products, packaging manufacturers, and other advocates for sensible PFAS regulations.
Unfortunately for regulated industries, states will likely enjoy many avenues for regulating PFAS in the manner the states see fit, potentially creating significant burdens on industry to navigate conflicting state regulations. States enjoy such power pursuant to their general police powers, through which they have the ability to pass laws on health, safety, and general welfare, and to tailor such laws to the needs of that state. This blog post explores: (1) whether federal preemption is a solution for regulated entities; (2) whether Congress should grant protections to “passive receivers” of PFAS; and (3) examples of preemption arguments that will soon face Congress and the courts.
Should the Federal Government be the Exclusive Regulator of PFAS Risks?
In response to the government’s August 2025 inquiry, some industry groups urged broad federal preemption over the regulation of PFAS; in other words, for the federal government to step in as the exclusive regulator of PFAS, displacing state laws touching on the issue. But because PFAS seems to implicate an endless list of products and services, it seems unlikely that the federal government will have the resources or the desire to occupy every facet of regulation of PFAS, inevitably leaving room for States to regulate.
For example, if a state wanted to pass a labeling law that placed extreme burdens on product manufacturers and vendors to include labeling of PFAS risks, generally that is the sort of regulation that states are permitted to enact, even if it creates burdens on out of state vendors.
In response to state regulations on PFAS and other areas where the federal government believes states are creating unnecessary burdens, the federal government could choose to “occupy the regulatory field,” thereby preempting state laws that regulate PFAS. For example, the federal government could enact legislation that declares the labeling of PFAS risks to be exclusively a federal issue by creating uniform standards and invalidating state laws on the issue. Of course, creating uniform labeling for PFAS risks may mean biting off more than Congress can chew, as PFAS seem to implicate an endless list of products and services, and the risks are still not fully understood.
In many other areas of consumer protection, federal regulations establish a safety floor, but states are free to establish their own ceiling, in other words, a stricter standard than the federal standard. That’s true for safe drinking water standards, and most toxic exposure and land contamination issues, where states enjoy great leeway to regulate, and courts have the ability to award substantial compensation to plaintiffs, even when industry has complied with federal standards. Even if Congress attempts to occupy portions of the PFAS regulatory field, it seems likely that states will continue to enjoy broad power to regulate various aspects of PFAS and impose more burdensome standards than those adopted by the federal government.
Should Congress Grant Protections to “Passive Receivers” of PFAS?
One strategy Congress should consider is whether to preempt state laws that create burdens for “passive receivers” of PFAS, i.e., entities that are not responsible for manufacturing or intentionally using PFAS, but which inevitably become the recipients of PFAS. Common examples include landfills or other waste management facilities, drinking and wastewater utilities, and other downstream facilities. Because these facilities do not manufacture or intentionally utilize PFAS, they do not believe they should bear the costs of remedying PFAS-related harms.
The waste industry has been particularly vocal in expressing its view that landfills serve a vital function in managing the public’s waste and are one of the safest places for PFAS to end up, and therefore their liability for PFAS-related harms should be limited. Landfills are likely to continue receiving waste that inevitably contains PFAS, potentially in excess of the unforgiving concentration thresholds being proposed by regulators. As Liskow has previously detailed, EPA has issued guidance suggesting that it will not target public landfills in CERCLA enforcement actions. The waste industry has decried EPA’s policy guidance as insufficient, as it does not offer relief for private landfills (which still provide vital public services) or protections from non-CERCLA sources of liability.
Even if EPA does not target landfills with CERCLA enforcement actions, landfills could still face significant burdens in complying with conflicting state PFAS regulations and liability from state law tort suits. For this reason, it is a safe bet that the waste industry will continue lobbying Congress for protections from PFAS-based liability, potentially including preemptive federal laws that would displace state PFAS laws and regulations.
Examples of Coming Preemption Fights
It is unlikely that the federal government would ever be willing or able to preempt all state laws relating in any way to PFAS. That is why it falls on the regulated community, especially passive receivers of PFAS, to work with lawmakers to identify the most crucial areas where national uniformity would both protect consumers and reduce the burdens on interstate commerce. Some areas where conflicting state regulations could present significant burdens on interstate commerce, and where regulated industries are likely to seek relief from Congress include: (1) labeling requirements; (2) regulation on consumer goods, including packaging for food and other materials; and (3) standards for reporting and testing.
In response to the government’s August 2025 inquiry, multiple industry groups have indeed suggested federal preemption as a solution to various PFAS-related challenges. Some groups argued that certain laws already on the books, e.g., federal pharmaceutical regulations, are already sufficient to achieve preemption of many state PFAS laws. The courts will certainly experience a wave of litigation from regulated industries attempting to use the preemption doctrine to challenge state PFAS regulations.
Clients turn to Liskow for expertise on PFAS and related regulatory issues, and the press does too. For further questions regarding PFAS and the regulation of other “forever chemicals,” contact Liskow attorney Michael Mims and visit our Environmental Practice Page.