[co-author: Stephanie Kozol]*
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.
*Senior Government Relations Manager
