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 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.

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Photo of Adam Buddenbohn Adam Buddenbohn

Adam’s goal is to help clients make the law work for their business. He focuses his practice on business litigation with an emphasis on employment law, toxic tort and product liability matters.

Photo of Paul Calfo Paul Calfo

As part of his extensive products and toxic tort practice, Paul handles a diverse range of products cases from chemical exposure and contamination to heavy machinery and lithium-ion battery fires. His California-based practice includes handling individual cases as well as large, high-risk matters…

As part of his extensive products and toxic tort practice, Paul handles a diverse range of products cases from chemical exposure and contamination to heavy machinery and lithium-ion battery fires. His California-based practice includes handling individual cases as well as large, high-risk matters arising from mass casualty injury and death events. He regularly and directly manages state and nationwide coordinated, related, and multidistrict dockets of toxic tort litigation with exposure claims related to chemicals such as PFAS and minerals such as asbestos. Paul has also handled cases involving glyphosate and orally ingested products/supplements.

In Los Angeles County, Paul regularly handles cases that fall under California’s Section 36, which provides plaintiffs with various means to rapidly move complex cases to trial within four months. Although such motions are routinely filed by plaintiffs and granted, Paul’s dogged refusal to concede have led to courts ruling in his favor, defeating Section 36 motions and leading to favorable resolution for firm clients.

Paul also handles products liability matters for multi-national franchisor corporations. He understands the complex underlying business relationships of companies while also understanding the potential liability of a complicated component or end-product. He is especially enthusiastic about cases that require him to dive into new products, and he aims to convey clients’ missions to a jury. Paul also enjoys working closely with our clients to synthesize the research and development needed to make products safe so that innovation can flourish.

A member of the firm’s Mass Tort & Product Liability team, Paul was the first associate to join the Los Angeles office after its opening. This situation presented an unusual opportunity to support partners across various teams with a broad array of litigation. Even early in his practice, Paul cut his teeth by representing both plaintiffs and defendants in everything from breach of contract, real estate, and premises cases to complex credit lending and corporate ownership disputes. He quickly learned transferable skills and a strategic overview of how best to work up and resolve or push different types of cases to trial. Paul continues to spread his practice between product liability and a variety of complex commercial litigation, and clients appreciate his ability to assist with multiple matters.

Paul handles matters in state court, federal court, and arbitration. He has spent extensive time in the courtroom from the beginning of his career, thriving on litigation strategy, trial, and oral argument. With a passion for chewing on difficult problems and finding backdoor solutions, Paul is always thinking about the challenges of clients’ cases.

Outside of the courtroom, Paul is an active member of the firm. He is a frequent mentor and a member of firm committees, and he enjoys guiding new associates so they can realize their full potential. He is a regular mentor of our first-year associates, with his favorite phrase being, “Get comfortable being uncomfortable; that mindset is the best way to grow.”

Before joining the firm, Paul interned as a member of the White House Counsel’s Office, where he participated in the resolution of various policy issues and confronted constitutional questions on the separation of executive and congressional power. Paul assisted with executive branch ethics codes as well as legal research concerning executive orders and the First and Fourteenth Amendments. He also assisted in preparing federal judicial nominees at all appellate levels for congressional hearings.

Photo of Dominique Savinelli Dominique Savinelli

Dominique litigates and advises on behalf of clients in the pharmaceutical, chemical and agribusiness industries in high-stakes toxic tort and product liability cases. She also manages expert teams for complex commercial and mass tort litigation.