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 a partner in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group and co-leader of the State Attorneys General practice. He focuses primarily on federal and state government regulatory and enforcement matters involving state attorneys general, the Consumer Financial Protection Bureau (CFPB), and the Federal Trade Commission (FTC). Drawing upon his experience as a deputy attorney general, Ashley has developed an extensive consumer practice with regard to the consumer financial services industry.
|Clay Friedman – Co-leader
Clay is a partner in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group and co-leader of the State Attorneys General practice. Informed by nearly a decade in a state attorneys general office, and more than 25 years in private practice, Clay spends much of his time representing clients in singular or multistate regulatory actions. Clay has repeatedly led teams before all 50 state attorneys general and also handles matters with the Federal Trade Commission, the Consumer Financial Protection Bureau, and other local, state and federal agencies.
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.
Stephen represents clients interacting with, and being investigated by, state attorneys general and other enforcement bodies, including the CFPB and FTC, as well as clients involved with litigation, particularly in heavily regulated industries.
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.
Michael handles high-profile state attorneys general, FTC, and CFPB investigations by advising clients through these complex government inquiries. He assists clients through the entire life cycle of investigations, from regulatory enforcement through formal litigation.
|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.
Tim is an attorney in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group, with a primary focus on financial services litigation.
Chris 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.
Natalia is an associate in the firm’s business litigation practice. She recently received her J.D from the University of California, Davis School of Law.
Namrata is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group, based in the Washington, D.C. office. Her work includes advising clients in regulatory investigations and compliance matters, in addition to representing clients in civil litigation matters.
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.
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. Susan also represents banks, fintechs, and financial services companies in connection with regulatory examinations and investigations brought by the CFPB, state attorneys general, and the California Department of Financial Protection and Innovation.
John represents clients in a wide variety of general and complex litigation matters, shareholder disputes, products liability, and privacy claims.
Whitney is an attorney 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.
Trey is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement practice. His experience includes serving as a summer associate at the firm in 2021.
An experienced litigator, Daniel advises and represents regional, national and international companies, financial institutions and insurers in all facets of business, complex commercial and insurance coverage litigation. He is committed to working with his clients to find creative solutions to meet their needs.
Stephanie is Troutman Pepper’s senior government relations manager in the state attorneys general department.