Michigan Grapples With Airport Authority Over Application of Federal Officer Removal Statute in PFAS Litigation
For the last several months, the Gerald R. Ford International Airport Authority (Airport) in Grand Rapids, Michigan, has been locked in an appellate battle with Michigan’s Department of Environment, Great Lakes, and Energy and State Attorney General Dana Nessel (collectively, Michigan) over whether the Airport may remove Michigan’s lawsuit over the Airport’s use of PFAS[1]-containing firefighting foam based on the federal officer removal doctrine.
Judge Beckering in the Western District of Michigan applied the three-pronged test for determining whether a party may rely on the federal officer doctrine and remanded, reasoning that even though the Airport raised a colorable federal contractor defense, it was neither “acting under” or controlled by the Federal Aviation Administration (FAA) in its handling of PFAS-containing firefighting foam, nor were the Airport’s actions sufficiently “related to” the FAA.
Appealing to the Sixth Circuit, the Airport argues that it has met its burden to show that the Airport was acting under the FAA and that those actions related to the FAA. Dkt. No. 20, Brief of Defendant-Appellant, Michigan Dep’t. Of Env’t., Great Lakes, and Energy, et al. v. Gerald R. Ford International Airport Authority, No. 24-1085 (6th Cir. May 1, 2024). According to the Airport, it acts under the FAA as a government contractor by providing “the safest, most efficient aerospace system in the world” in exchange for federal grants from the FAA. Indeed, the Airport cannot receive federal funding without conforming to FAA requirements, which mandate that the Airport maintain, use, and regularly test specific military spec firefighting foam containing PFAS. This mandated maintenance and testing of the Airport’s firefighting systems was supervised by the FAA. The FAA thus controls the way the Airport handles the use of the foam, which is precisely the subject of this litigation.
In support of remand, Michigan contends that the Airport failed to meet its burden for each of the three elements of the federal officer test. Dkt. No. 21, Brief of Plaintiffs-Appellees, Michigan Dep’t. Of Env’t, Great Lakes, and Energy, et al., No. 24-1085 (2024). First, the Airport was not “acting under” a federal officer since merely being subject to, and complying with, federal regulations does not amount to “acting under” a federal officer, and receiving federal grant funds does not transform a regulated entity into a federal one. Moreover, the federal officer removal statute exists for the benefit of the federal government and its agencies in state court, not for non-federal actors like the Airport. Second, the subject of the lawsuit—the Airport’s use of PFAS-containing firefighting foams that violated stormwater discharge permits—was not an act under color of federal office because the Airport was not exercising FAA authority. The FAA has no control or authority over disposal of PFAS-containing foam. Finally, Michigan argues that the Airport did not raise a colorable federal defense. The Airport did not allege it had a contract with the federal government until the appeal, and there is no “uniquely federal interest”—such as the risk that the federal government would have to pay a judgment—that would justify protecting the Airport’s conduct from Michigan’s state environmental laws, which should not be displaced otherwise.
The Airport’s appeal has the potential to establish Sixth Circuit precedent for such removals going forward. As PFAS litigation continues to grow, this case could be an important predictor of whether similarly situated defendants will be able to claim a first-class ticket to a federal forum in this way.
Updates on this case to follow.
[1] “PFAS” refers to a group, or category, of per- and polyfluoroalkyl substances often used in many consumer products and commercial applications.