Wake Forest Law Review
18Mar

Making Removal Stick

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By: Will Boyce 

Background         

The human body is made up of water, proteins, fats, and . . . per- and polyfluoroalkyl substances? These chemicals, or PFAS for short, are a group of nearly 15,000 synthetically made chemicals known for their strong resistance to heat and other substances, earning them the title “forever chemicals.”[1] And while they are extraordinarily useful for producing water-repellent materials, non-stick pans, and other common products, their durability also means that they, well, endure.[2] These days, PFAS can be found pretty much everywhere, including in drinking water and, yes, the blood of most people in the United States.[3] Studies suggest that PFAS can contribute to a number of health problems, including liver damage, birth defects, and increased risk of some cancers.[4] In recent years, the EPA, states, and private litigants have all responded to the threats PFAS pose to human health and the environment through regulation and litigation.[5]

Maryland v. 3M Co.

In 2023, Maryland and South Carolina initiated litigation intended to hold manufacturers including 3M Company responsible for polluting waterways through their use of PFAS in manufacturing industrial and consumer products.[6]Each state brought two suits pleading state-law causes of action in their respective state courts: one suit directed at 3M’s production of aqueous film-forming foam (“AFFF”), a widely used firefighting foam, for the U.S. military, and one suit specifically excluding 3M’s production of AFFF directed at all other PFAS production.[7] 3M removed all four suits to federal court under 28 U.S.C. § 1442(a)(1), the federal officer removal statute, and each state moved to remand the non-AFFF suits back to state court.[8] The district courts in Maryland and South Carolina agreed with the states that there was no basis for removal to federal court, as the non-AFFF complaints had specifically disclaimed any remediation for AFFF-related pollution.[9] 3M appealed each district court’s decision, and the Fourth Circuit consolidated the cases for review.[10]

The majority opinion, authored by Judge Agee and joined by Judge Rushing, held that removal was proper under the federal officer removal statute.[11] Under that statute, 3M’s removal would be proper “if it plausibly allege[d] ‘(1) that it acted under a federal officer, (2) that it has a colorable federal defense, and (3) that the charged conduct was carried out for or in relation to the asserted official authority.’”[12] Each district court’s rejection of the removal centered on the third element.[13]

Judge Agee first rejected the district courts’ acceptance of the complaints’ disclaimers as dispositive.[14] He stated that the officer removal context required the Court to “credit a removing defendant’s theory of the case” regarding whether it was related to federal work, not to accept the plaintiff’s pleading.[15] Accordingly, the majority held that the district courts had erred in considering it as dispositive.[16]

Then, Judge Agee addressed the third element head-on, determining that the nexus element was met because the contaminating PFAS would have commingled such that disentangling their precise sources would be impossible.[17] And because the AFFF production is “inextricably related” to the more general pollution, the third element is met.[18] Still, the Court ultimately vacated and remanded the case to the lower courts for a determination of whether the other two elements required for removal were met.[19]

Judge Floyd dissented.[20] He distinguished prior cases allowing removal as complaining of conduct that “could not be separated from the relevant federal authority.”[21] Here, Judge Floyd maintained, the fact that the different chemicals would be intermingled in the environment was “too tenuous” a causal connection to support removal.[22] In his view, such a broad interpretation of the causal nexus requirement would effectively and improperly prevent many state-law claims from being brought in state courts, so long as the defendant could identify a minor connection to work performed for government contracts.[23]

The Future of PFAS Litigation in North Carolina

It should come as no surprise that there is already PFAS litigation taking place in North Carolina. One class-action suit alleged that DuPont and Chemours dumped PFAS into the Cape Fear River.[24] It was filed in the Eastern District of North Carolina on January 31, 2018, and has slowly been making its way through the courts.[25] And in 2021 and 2022, then-Attorney General Josh Stein filed a total of six lawsuits related to AFFF in North Carolina state court.[26] In other words, PFAS litigation is near and dear to the interests of many North Carolinians, and PFAS litigations will likely be in the public eye for years to come.

Now, North Carolina’s lawsuits were filed in state court years ago and remain in state court, so removal does not appear possible at this point. Still, the Fourth Circuit’s decision in Maryland v. 3M Co. could impact future PFAS litigation in North Carolina. Let’s say a North Carolina plaintiff files two new suits with state law claims: one alleging harm resulting from the disposal of PFAS related solely to the manufacture of consumer-based products, and one related to the production of AFFF, including for military purposes. In that case, Maryland v. 3M Co. is perfectly on point—according to the majority, the necessary intermingling of the chemicals, once they reach waterways, would mean the nexus requirement would likely be met.[27] So if the other elements of federal officer removal are met, removal of both suits to federal court may be proper.[28]

Now imagine a slightly different situation—imagine that the plaintiff does not file a suit related to the military. Would removal of the state law claim out of state court still be possible? In Maryland v. 3M Co., the Fourth Circuit discussed a recent Seventh Circuit case where the state of Illinois sought to recover from a single 3M facility, disclaiming contamination from a facility that may have produced AFFF for military use.[29] In that case, Illinois’ concession meant that 3M’s removal failed on another element.[30] But think about it—that only works if the pollution can be traced to only one non-military serving facility.

But what about here, where the military production is “inextricably related” to the consumer production by their intermingling in the waterways?[31] In such a case, our hypothetical plaintiff may be subject to federal removal even if they only filed a suit that specifically excluded PFAS used for military purposes. After all, these forever chemicals trickle down into waterways and intermingle, making it nearly impossible to determine the precise point from which they originated. All of which is to say, PFAS suits might all be subject to removal to federal court.

At this point, PFAS are everywhere.[32] And since they do not fully degrade, they will likely be everywhere for a while. As PFAS litigation continues, courts may have to contend with the unique procedural challenges posed by chemicals that last, well, forever.

[1] See Lisa Friedman, Six Things to Know About ‘Forever Chemicals’, N.Y. Times (May 28, 2024), https://www.nytimes.com/2024/04/10/climate/six-things-to-know-about-forever-chemicals.html.

[2] Id.

[3] Id.

[4] Id.

[5] See, e.g., Key EPA Actions to Address PFAS, EPA (Jan. 24, 2025), https://www.epa.gov/pfas/key-epa-actions-address-pfas; PFAS: Per- and Polyfluoroalkyl Substances, California Water Boards (Mar. 7, 2025), https://www.waterboards.ca.gov/drinking_water/certlic/drinkingwater/pfas.html; Brian Ledger et al., EPA and Developing PFAS Science: Impacts on Litigation, Reuters (Jan. 30, 2024, 11:05 AM), https://www.reuters.com/legal/legalindustry/epa-developing-pfas-science-impacts-litigation-2024-01-30/#:~:text=The%20EPA%20and%20private%20well,claimed%20injuries%20to%20his%20cattle (describing how, “[i]n 1999, the first PFAS lawsuit was filed against DuPont by a West Virginia farmer”).

[6] Maryland v. 3M Co., No. 24-1270, 2025 WL 727831, at *2 (4th Cir. Mar. 7, 2025).

[7] Id. at *2–*3.

[8] Id.

[9] Id.

[10] Id. at *3.

[11] Id.

[12] Id. at *4 (quoting Anne Arundel Cnty. v. BP P.L.C., 94 F. 4th 343, 347–48 (4th Cir. 2024)).

[13] Id.

[14] Id. at *5.

[15] Id.

[16] Id. at *6.

[17] Id.

[18] Id. at *8.

[19] Id.

[20] Id. at *9 (Floyd, J., dissenting).

[21] Id. at *10 (Floyd, J., dissenting).

[22] Id.

[23] Id.

[24] See Cape Fear River PFAS Litigation: Nix, et al. v. The Chemours Company FC, LLC, et al., CohenMilstein, https://www.cohenmilstein.com/case-study/carey-et-al-v-ei-du-pont-de-nemours-and-co-inc-et-al-cape-fear-river-nc-water/ (last visited Mar. 14, 2025).

[25] Id.

[26] See Attorney General Josh Stein Files Four Lawsuits Against 14 Companies Over Toxic Firefighting Foam, N.C.D.O.J.: Attorney General Jeff Jackson (Nov. 4, 2021), https://ncdoj.gov/attorney-general-josh-stein-files-four-lawsuits-against-14-companies-over-toxic-firefighting-foam/; Attorney General Josh Stein Filed Two Additional Lawsuits Over Toxic Firefighting Foam, N.C.D.O.J.: Attorney General Jeff Jackson (Oct. 18, 2022), https://ncdoj.gov/attorney-general-josh-stein-files-two-additional-lawsuits-over-toxic-firefighting-foam/.

[27] Maryland v. 3M Co., 2025 WL 727831, at *6.

[28] Id. at *8.

[29] Id. at *7; see also Illinois ex rel. Raoul v. 3M Co., 111 F.4th 846 (7th Cir. 2024).

[30] Id. at 849.

[31] Maryland v. 3M Co., 2025 WL 727831, at *8.

[32] See Friedman, supra note 1.

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1Feb

In Mississippi, When It Rains, It Pours: Jackson Residents File Class-Action Lawsuit over 2022 Water Crisis

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Mollie Pinion

It is indisputable that “[a]ccess to clean, poison-free water is a fundamental human right.”[1] Nevertheless, the water infrastructure in Jackson, Mississippi has been plagued for decades by underinvestment, “neglect, mismanagement, and maintenance failures.”[2] Even though Jackson is the state’s capital and largest city, its residents are all too familiar with the daily struggles accompanying frequent water line breakages, “shut-offs, boil-water notices and . . . ongoing exposure to toxic lead and harmful bacteria.”[3] Late last year, these struggles culminated in the complete shutdown of the city’s primary water treatment plant, leaving over 150,000 Jackson residents without safe “water to drink, wash, or [even] flush toilets” for what state leaders feared would be an indefinite period of time.[4]

In August 2022, harsh rainfall bloated the Pearl River well past flood stage and wreaked havoc on the O.B. Cutis Water Treatment Plant (“O.B. Curtis WTP”), resulting in pump failures spanning 1,500 miles.[5] The O.B. Curtis WTP “processes [nearly] 50 million gallons of water a day and [had been] operating on backup pumps for months” leading up to the storm’s devastating impacts on Jackson’s already strained infrastructure.[6] The pump failures resulted in a severe drop in water pressure, making the water susceptible to contaminants, including alarming amounts of soil toxins and chemicals, and completely unsafe to drink.[7] Andrew Whelton, an environmental engineer and water safety advisor, explained that water was unable to reach the end of the pipes.[8] When such a catastrophic failure occurs, Whelton added, “’[t]hat means you have lost complete control of your water system.’”[9] After the state began relief and repair efforts, Governor Tate Reeves declared a state of emergency in the capital city, stating that the drop in water pressure had created a “condition of disaster and extreme peril to the safety of persons and property” in the city of Jackson.[10]

Notably, these untenable conditions did not come without adequate warning. In early 2020, the Environmental Protection Agency ( the “EPA”) launched an investigation into Jackson’s compliance with the Safe Water Drinking Act and put the city on notice that the equipment at the O.B. Curtis WTP was “inoperable” [11] and had “operations and maintenance issues.”[12] One year later, heavy snowfall in February 2021 caused failures at the O.B. Cutis WTP and left residents without safe drinking water for weeks.[13] In response, the EPA issued an emergency federal order, finding the city in violation of the Safe Drinking Water Act, the National Water Regulations, and the Mississippi Primary Drinking Water Regulations.[14] Most recently, Jackson allocated $1.2 million for repairs at the O.B. Cutis WTP in April 2022, but it proved insufficient to address the facility’s “decades of disrepair.”[15] Jackson residents were placed under a boil-water notice beginning in July 2022 as state officials had begun “’preparing for a scenario where Jackson would be without running water for an extended period.’”[16] Despite these warnings and futile preparations, Jackson’s water system remained on the brink of failure, culminating in the complete shutdown in August 2022.

Although Jackson residents have long ago adapted to such “catastrophic government failure[s],”[17] the 2022 water crisis sparked the first federal class action lawsuit naming the city, government officials, and private engineering firms as defendants.[18] Claiming injunctive relief and monetary damages, the resident-plaintiffs allege that, “[d]ue to antiquated and inadequate equipment, lack of repairs and maintenance, understaffing, and other failures . . . Jackson has not provided adequate and safe drinking water to its citizens.”[19] The Complaint describes that, as the result of decades of neglect, the failure of the O.B. Curtis WTP deprived residents of not only drinking water but also “water for making powered baby formula, cooking, showering, or laundry,” and the lack of water pressure left Jackson residents unable to “flush their toilets for days at a time.”[20] Further, the Complaint states that, even before the plant failed, the city’s water supply was and continues to be “not fit for human consumption due to high levels of lead and other [harmful] contaminants in [flagrant] violation of [the] right to bodily integrity protected by the Due Process Clause of the Fourteenth Amendment, the federal Safe Drinking Water Act, and the [EPA]’s Lead and Copper Rule.”[21] Due to the significant EPA warnings about the O.B. Curtis WTP, plaintiffs contend that the shutdown was “wholly foreseeable by Defendants’ actions and has left Jackson residents in an untenable position – without access to clean, safe water in 2022 in a major United States city.”[22] Raine Becker, one of the named Plaintiffs in the class action, emphasized that “[a]ccess to clean water is a basic human right . . . . The purpose of the lawsuit is to force them to fix the water mess, care for our community that has been put in danger, and put the right systems in place so that this never happens again.”[23]

While Jackson residents are hopeful that the lawsuit will “‘give the next generation a chance,’”[24] it has certainly shed light on the presence of “environmental racism,”[25] a term particularly applicable to the daily struggles faced by many in the predominantly Black city. Jackson is comprised of nearly 84% minorities, and one in four live below the poverty line.[26] As the water crisis picked up coverage across the United States, it also garnered international attention, with one Swiss news source describing the conditions in Jackson as “a run-down settlement in a crisis region.”[27] Others found the capital city’s water system a “symbol of national embarrassment,” with a “complex story of population decline, poverty, racism, politics, mismanagement, and theft.”[28] With this background in mind, experts say that places like Jackson are at high risk for such environmental catastrophes due to the fact that “structural racism” is blatant in such infrastructure mismanagement, noting that disparate water systems “’literally lay the groundwork for racial disparities.’”[29] In response to the water crisis, the EPA has launched further investigations, now determining whether Mississippi state agencies have “’discriminated against the majority Black population of Jackson, Mississippi, on the basis of race . . . in its funding of water infrastructure and treatment programs.’”[30] The National Association for the Advancement of Colored People (the “NAACP”) applauded the investigation, emphasizing that a probe into the state’s “”decades-long pattern and practice of discriminating against the city of Jackson when it comes to providing federal funds to improve local water systems” is long overdue.[31] 

While Jackson residents have consistently centered each day around frantic searches for safe water, many remain hopeful that the lawsuit and the attention garnered by the crisis will only help to improve the conditions in Mississippi’s capital. Evelyn Fletcher, a Jackson resident of 13 years, optimistically “feel[s] that God allowed this situation to be exposed across America, and even other countries, so we could get the assistance that we really need . . . because we’ve been going through it for a while.”[32] Perhaps she is right. At a minimum, the class action lawsuit ensures that Mississippi state and local leaders will soon have to answer to Jackson residents for failing to provide safe, clean water.

[1] Class Action Complaint for Injunctive Relief & Money Damages with Jury Trial Demand at 1, Sterling v. City of Jackson, No. 3:22-cv-00531 (S.D. Miss. Sept. 16, 2022).

[2] Lieff Cabraser Heimann & Bernstein, LLP, Jackson, Mississippi Residents File First Federal Class Action Lawsuit Over the Contamination and Failure of the Water System, Business Wire (Sept. 19, 2022, 9:00 AM), https://www.businesswire.com/news/home/20220919005322/en/Jackson-…on-Lawsuit-Over-the-Contamination-and-Failure-of-the-Water-System.

[3] Emily Le Coz et al., Jackson Water Crisis Flows from Century of Poverty, Neglect and Racism, Mississippi Today (Nov. 7, 2022), https://mississippitoday.org/2022/11/07/jackson-water-crisis-poverty-neglect-racism/.

[4] Id.; Thomas Nocera, Drinking Water Crisis Envelopes Junk-Rated Jackson, Mississippi, System, Bond Buyer (Aug. 31, 2022, 3:38 PM), https://www.bondbuyer.com/news/drinking-water-crisis-envelops-junk-rated-jackson-mississippi-system.

[5] Brady Dennis & Sarah Kaplan, Jackson, Miss., Shows How Extreme Weather Can Trigger a Clean-Water Crisis, Wash. Post (Aug. 21, 2022, 5:29 PM), https://www.washingtonpost.com/climate-environment/2022/08/31/jackson-water-crisis-mississippi-floods/.

[6] Nocera, supra note 4.

[7] Dennis & Kaplan, supra note 5.

[8] Id.

[9] Id.

[10] Miss. Exec. Order No. 1564 (Aug. 30, 2022).

[11] EPA, MS0250008, Safe Drinking Water Act Compliance Investigation 18 (2020).

[12] Id. at 19.

[13] Nocera, supra note 4.

[14] EPA, MS0250008, Notice of Noncompliance Pursuant to Section 1414(a)(1)(A) of the Safe Drinking Water Act, 42 U.S.C. § 300g-3(a)(1)(A), City of Jackson Public Water System 1 (2020).

[15] Nocera, supra note 4.

[16] Id.

[17] Emmanuel Felton, Living in a City with No Water: ‘This is Unbearable,’ Wash. Post (Sept. 3, 2022, 9:11 AM), https://www.washingtonpost.com/nation/2022/09/03/jackson-mississippi-water-crisis/.

[18] Lieff, supra note 2; Class Action Complaint for Injunctive Relief & Money Damages with Jury Trial Demand, Sterling v. City of Jackson, No. 3:22-cv-00531 (S.D. Miss. Sept. 16, 2022).

[19] Id. at 14–15.

[20] Id. at 1.

[21] Id.

[22] Id.

[23] Lieff, supra note 2.

[24] Felton, supra note 17 (quoting Jackson resident Tammie Williams).

[25] David Singer, Poverty and Racism in Jackson Mississippi’s Water Crisis, Neue Zürcher Zeitung (Dec. 14, 2022), https://www.nzz.ch/english/poverty-and-racism-in-jackson-mississippis-water-crisis-ld.1716790 (The term “environmental racism” “refers to the fact that Black people and Native Americans are regularly exposed to greater burdens due to pollution, landfills, or neglected infrastructure than white Americans.”)

[26] Le Coz, supra note 3.

[27] Singer, supra note 25.

[28] Le Coz, supra note 3.

[29] Dennis & Kaplan, supra note 5 (quoting public policy researcher Andre Perry).

[30] Aurora Ellis Daniel Trotta, U.S. EPA Opens Civil Rights Probe into Mississippi Capital’s Water Crisis, Reuters, Oct. 20, 2022, https://www.reuters.com/world/us/us-epa-opens-civil-rights-probe-into-mississippi-capitals-water-crisis-2022-10-20/.

[31] Id.

[32] Le Coz, supra note 3.

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