[co-author: Stephanie Kozol]*
A state attorney general (AG) and a major American corporation recently battled over the scope and applicability of the government contractor defense.
The case is about per- and polyfluoroalkyl substances (PFAS) chemicals. These fluorine-related chemicals are used in a variety of products, including waterproof clothing, nonstick cookware, furniture, and food packaging. Opponents of PFAS refer to them as “forever chemicals” because, as they argue, PFAS compounds do not break down naturally and can contaminate the soil and drinking water.
Connecticut’s AG contends that PFAS chemicals have turned up in his state’s drinking water. As a result, he sued 3M and other alleged makers of PFAS chemicals. The complaint alleges “public nuisance, trespass, negligence … [and] environmental protection”-related claims against “the largest producers of the chemicals.”[1] The complaint now sits before a federal court.
But Connecticut’s AG would like the case back before a state court in Connecticut. 3M, and other alleged PFAS producers, opposed Connecticut’s attempt to move the case to state court. Their opposition is rooted in the government contractor defense.
The government contractor defense generally says that federal contractors, when acting under the direction and authority of the U.S., may enjoy immunity from state law tort claims. 3M argues that only a federal court can address whether 3M and others are immune from state law claims for purportedly producing and distributing PFAS chemicals “under color of federal authority[.]”[2] Id.
Why It Matters
The outcome of this matter has wide implications on defenses available to companies and the authority of state AGs in the tort claims context regarding PFAS. This Connecticut case may help determine when and to what extent federal courts and the government contractor defense may shield government contractors from an expanding realm of state -led tort claims.
Additional articles on State AG offices in the PFAS space:
[1] https://www.law360.com/compliance/articles/1835446
[2] Id.
*Senior Government Relations Manager
