I recently attended the American Bar Association’s Insurance Coverage Litigation Committee annual conference in Tucson, Arizona, where legacy liabilities and long-tail coverage disputes took center stage. Notably, two panels focused on pollution exclusions, alongside others addressing allocation and data issues across a range of complex claims.

What struck me most was how emerging and evolving liabilities, including PFAS, ethylene oxide (“EtO”), climate change, and microplastics, present novel scientific and factual challenges yet are still evaluated using familiar insurance coverage tools. While those tools have grown more sophisticated, the core analytical framework remains largely the same.

What Does a Pollution Exclusion Really Exclude?

One of the conference’s earliest panels examined how pollution exclusions apply to emerging environmental risks such as PFAS (particularly biosolids), EtO, and microplastics. Each raises difficult legal and scientific questions that complicate coverage analysis.

PFAS, for example, present unique challenges because only certain compounds are designated as hazardous substances under CERCLA. Other, currently unregulated PFAS may later break down into regulated compounds, raising difficult questions about whether remediation costs satisfy the “legally obligated” standard for coverage. Investigating and remediating PFAS contamination is further complicated by extremely low allowable exposure levels and the strength of PFAS chemical bonds. Microplastics raise similar issues, as they too can degrade into more heavily regulated substances, often leading to equally uncertain coverage outcomes.

Recent litigation involving EtO emissions was also a major focus, particularly the Illinois case Griffith Foods International, Inc. v. National Union Fire Insurance Company of Pittsburgh. In that case, Sterigenics sought coverage for settlements related to alleged injuries from EtO emissions, even though the emissions were permitted and released at or below permitted levels. While the district court held that injuries from these emissions were not barred by the policies’ total or absolute pollution exclusions because Sterigenics had a permit for them, a Seventh Circuit panel disagreed on March 13. The appellate court concluded that whether emissions were permitted was irrelevant to the exclusion’s application and held that the insurer had no duty to defend.

The Griffith decision reflects a “plain language” approach to total pollution exclusions: if a policy excludes coverage for the discharge of pollutants, then any such discharge—permitted or not—is excluded. One conference panel noted that courts in states such as Alabama, Colorado, and Louisiana have adopted this interpretation.

Other jurisdictions, including California and New York, and until recently Illinois, have taken a narrower view. Those courts generally limit pollution exclusions to “traditional” environmental pollution, such as the gradual and uncontrolled release of hazardous substances. Their reasoning often centers on context and drafting history, noting that nearly any substance could be considered an irritant under certain circumstances.

Beyond Pollution: Other Long-Tail Coverage Challenges

The conference also explored long-tail liabilities beyond environmental claims. I attended a roundtable on insurance coverage issues arising under the Trafficking Victims Protection Reauthorization Act (TVPRA), which allows civil claims against individuals and companies that knowingly benefit from human trafficking. These cases are increasingly being brought against hotel franchisers and franchisees, yet insurance coverage law in this area remains largely unsettled. Panelists also discussed recent rulings involving abuse claims, another category of latent or progressive injury.

Additional panels addressed allocation issues for both traditional and emerging long-tail claims. My colleague Jazmin Gelbart co-led a discussion on what might become “the next asbestos,” underscoring the continued focus on large, complex liabilities.

Looking Ahead

Ultimately, the discussions in Tucson underscored that today’s emerging risks are not such much a departure from past coverage challenges than a continuation of them. Whether the claim involves PFAS, EtO, human trafficking, abuse, talc, or the next latent mass tort, policyholders need to be proactive in locating potentially responsible insurance policies, placing them on notice, and securing specialist insurance coverage counsel and experts to pursue the claim.