A federal judge has denied the Gerald R. Ford International Airport Authority‘s attempt to move an environmental lawsuit to federal court to be filed by Michigan Attorney General (AG) Dana Nessel, alleging that per- and polyfluoroalkyl substance (PFAS) releases by the airport authority contaminated the regional drinking water supply.
Filed in circuit court on September 8, the Michigan AG’s lawsuit accuses the airport authority of violating the Michigan Natural Resources and Environmental Protection Act. It seeks to enforce demands by the Michigan Department of Environment, Great Lakes, and Energy (EGLE), as well as past and future remediation and monitoring costs, and damages for the loss and destruction of natural resources, among other issues.
The airport authority sought to remove the action to the District Court for the Western District of Michigan, arguing that, notwithstanding the state-law basis for the AG’s claims, removal was proper under the federal officer removal statute, which authorizes removal of civil actions against an “officer” of the U.S. “or any person acting under that officer” for any act “under the color of such office.” On October 16, the airport authority filed a Notice of Potential Tag-Along Action before the Judicial Panel on Multidistrict Litigation (JPML), seeking to transfer the case into the multidistrict litigation in the District of South Carolina. The JPML issued a conditional transfer order on October 18, which the Michigan AG opposed. The AG filed a motion for remand on November 6.
The federal district court entered an order allowing the AG’s motion to remand, ordering the matter back to Michigan state court (but denying the AG’s request for attorneys’ fees). In her opinion, Judge Beckering concluded that while the airport authority had plausibly raised a government contractor defense, it failed to show it was “acting under” a federal officer, or that it performed the complained-of actions under the color of federal office.
The various forms of PFAS are commonly referred to as toxic “forever chemicals” because they do not break down in the environment. According to the Environmental Commitment: PFAS section of the airport authority’s website, the Federal Aviation Administration (FAA) requires it to employ aqueous film-forming foam (AFFF) containing PFAS “because of its effectiveness in extinguishing jet-fuel fires.” FAA regulation of AFFF formed a substantial part of the airport authority’s removal arguments.
Why It Matters
The Michigan AG’s continued prosecution of her action demonstrates the state and federal regulatory challenges facing the owners and operators of sites that are alleged sources of PFAS contamination in drinking water, and also is consistent with state AGs’ traditional desire to prosecute litigation in “home” state courts, rather than federal venues.
Troutman Pepper State Attorneys General Team
Ashley Taylor – Co-leader and Firm Vice Chair Ashley is co-leader of the firm’s nationally ranked State Attorneys General practice, vice chair of the firm, and a partner in its Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group. He helps his clients navigate the complexities involved with multistate attorneys general investigations and enforcement actions, federal agency actions, and accompanying litigation. |
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Clay Friedman – Co-leader Clayton is a partner in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group and co-leader of the State Attorneys General practice, multidisciplinary teams with decades of experience crafting effective strategies to help deter or mitigate the risk of enforcement actions and litigation. |
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Judy Jagdmann Judy is a partner in the firm’s Regulatory Investigations, Strategy and Enforcement (RISE) practice, based in the Richmond office. She brings experience serving as chair and commissioner of the Virginia State Corporate Commission (VSCC) from 2006 through 2022, which includes regulating the utilities, insurance, banking, and securities industries. She also served as Virginia’s attorney general from 2005-2006. |
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Stephen Piepgrass Stephen leads the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group. He focuses his practice on enforcement actions, investigations, and litigation. Stephen primarily represents clients engaging with, or being investigated by, state attorneys general and other state or local governmental enforcement bodies, including the CFPB and FTC, as well as clients involved with litigation, with a particular focus on heavily regulated industries. |
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Avi Schick A former deputy attorney general of New York, Avi applies his experience in bet-the-company matters, representing clients in criminal and civil investigations and enforcement actions before state and federal regulators, prosecutors and enforcement agencies. |
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Michael Yaghi Michael is a partner in the firm’s State Attorneys General and Regulatory Investigations, Strategy + Enforcement (RISE) Practice Groups, nationwide teams that advise clients on consumer protection enforcement matters and other regulatory issues. |
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Samuel E. “Gene” Fishel Gene is a member of the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) practice, based in the Richmond office. He brings extensive regulatory experience, having most recently served as senior assistant attorney general and chief of the Computer Crime Section in the Office of the Attorney General of Virginia, and as special assistant U.S. attorney in the Eastern District of Virginia for 20 years. |
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Tim Bado Tim is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group, where he represents corporations and individuals facing potential civil and criminal exposure. Tim’s experience in government investigations, enforcement actions, and white-collar litigation spans a number of industries, including financial services, pharmaceutical, health care, and government contracting, among others. |
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Chris Carlson Chris Carlson represents clients in regulatory, civil and criminal investigations and litigation. In his practice, Chris regularly employs his prior regulatory experience to benefit clients who are interacting with and being investigated by state attorneys general. |
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Natalia Jacobo Natalia is an associate in the firm’s Regulatory Investigations, Strategy and Enforcement (RISE) practice. She focuses her practice on two primary areas: government contracting and state attorney general work. |
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Namrata Kang Namrata (Nam) is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group, based in the Washington, D.C. office. She routinely advises clients on a wide variety of state and federal regulatory matters, with a particular emphasis on state consumer protection laws relating to consumer financial services and marketing and advertising. |
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Michael Lafleur Michael is an associate in the firm’s Regulatory Investigations, Strategy, and Enforcement Practice Group. Based out of the firm’s Boston office, Mike has deep experience in litigation, investigations, and other regulatory matters involving state-level regulators and state attorneys general. |
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Susan Nikdel Susan is an associate in the firm’s Consumer Financial Services Practice Group, and focuses her practice on consumer financial services matters. She has defended several of the nation’s largest and most influential financial institutions in individual and class action litigation involving the Telephone Consumer Protection Act (TCPA), Fair Credit Reporting Act (FCRA), Fair Debt Collection Practices Act (FDCPA), and other consumer privacy statutes. |
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John Sample John is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group. He focuses his practice on a wide range of general and complex litigation matters, including shareholder disputes, fraud, products liability, breach of contract, and Biometric Information Privacy Act claims. |
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Whitney Shephard Whitney is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group. She represents clients facing state and federal regulatory investigations and enforcement actions, as well as related civil litigation. |
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Trey Smith Trey is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement Practice. He focuses his practice on helping financial institutions and consumer facing companies navigate regulatory investigations and resulting litigation. |
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Daniel Waltz Daniel is a member of the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group and State Attorneys General team. He counsels clients in connection with navigating complex government investigations, regulatory compliance, and transactions, involving state and federal government contracting obligations. Drawing on his broad experience as a former assistant attorney general for the state of Illinois, Daniel is a problem solver both inside and outside the courtroom. |
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Stephanie Kozol Stephanie is Troutman Pepper’s senior government relations manager in the state attorneys general department. |