3M to Raise Government-Contractor Defense in Arguments Over PFAS

Attorneys for chemicals manufacturer 3M Co. will argue that New Hampshire’s lawsuit, which alleges PFAS contamination stemming from some of the company’s products, should remain in federal court.

3M’s counsel intends to raise the government-contractor defense, which can shield companies from liability for products manufactured for government activities, during Oct. 2 oral arguments at the US Court of Appeals for the First Circuit, according to a company brief.

The case stems from a 2019 complaint filed by then-New Hampshire Attorney General Gordon MacDonald in the state’s Hillsborough County Superior Court, Northern District. The complaint related to claims of damage from per- and polyfluoroalkyl substances (PFAS) in general, but the state also filed a separate action the same day that was specific to alleged damage from aqueous film-forming foam (AFFF), which contains the same group of chemicals.

That more-specific firefighting foam case was transferred to federal court, without objection from New Hampshire, and subsequently lumped into federal multidistrict litigation.

3M in 2022 attempted to transfer the state’s more-general PFAS case to federal court by invoking the federal officer removal statute, and it also tried to transfer the case to the multidistrict litigation. However, a federal judge remanded the issue to state court, saying 3M hadn’t shown a link between the state’s claims about polluted natural resources and the company’s firefighting foam that was allegedly formulated according to military standards.

The company told the First Circuit on appeal that its attorneys will present “alternative theories” that AFFF could have caused the PFAS contamination at issue in the state’s more-general lawsuit.

“New Hampshire has continued to say that it intends to seek damages related to natural-resource contamination attributable” to PFAS-containing products aside from AFFF, according to a brief filed by the company’s counsel. “3M certainly will raise a government-contractor defense in response.”

“Congress determined that such a defense should be resolved in a federal forum,” the brief states.

New Hampshire, meanwhile, intends to argue that the case should be litigated in state court. Counsel for the state says there’s no basis for moving the matter to federal court.

“The court found the State consistently disavowed any intent to seek recovery for contamination stemming from 3M’s production of AFFF, which was the only product containing PFAS that 3M claims to have made at the direction of a federal officer,” according to New Hampshire’s brief.

PFAS manufacturers have a history of massive state-level settlements. Since 2018, companies like 3M have paid hundreds of millions of dollars to settle litigation from state attorneys general, who have sued many times over similar issues.

“Because the State has not sued 3M in this case for AFFF contamination, there is no nexus—to any degree—between the State’s claims and 3M’s formulation of that product at the alleged behest of the federal government,” according to New Hampshire’s brief.

Kenneth Sansone of SL Environmental Law Group will argue for New Hampshire. Michael Scodro of Mayer Brown LLP is arguing for 3M.

The judicial panel is composed of William J. Kayatta Jr., Julie Rikelman, and Jeffrey R. Howard.

The case is New Hampshire v. 3M Co., 1st Cir., No. 23-01362, oral argument 10/2/23.