Clark
NEW YORK – It’s now possible Vermont won’t get to pursue its environmental lawsuit against 3M in its preferred court and will instead have its case grouped with others in South Carolina.
Plenty of states have filed lawsuits over PFAS, so-called “forever chemicals” used for decades in consumer products and firefighting foam. Their exact effects are unknown, but what is known is that they stay in the human body.
Vermont hired noted environmental attorney Matthew Pawa for its case, plus other lawyers at Seeger Weiss. Pawa was instrumental in starting climate change litigation that has had trouble moving ahead and could possibly be taken up by the U.S. Supreme Court.
PFAS litigation alleges harm to the environment and drinking water. Cases that end up in federal court are usually put in a multidistrict-litigation proceeding in South Carolina with hundreds of others.
But, like in the climate change cases, government officials and the private lawyers they hired have strived to stay in state court, where they expect more success before juries made up of the citizens their lawsuits purport to represent.
Vermont’s lawsuit alleged contamination in water, wildlife, soil and sediment at the Rutland City landfill and 3M’s facility in Rutland. The latter wasn’t identified until July 2023, about four years after the case was first filed.
In October 2023, the Vermont Department of Environmental Conservation told 3M it was a “potentially responsible party” and was obligated to investigate its Rutland facility. The next month, Vermont’s lawyers emailed a copy of that letter to 3M’s counsel.
It did not refer to its manufacture of copper-clad laminates at the facility that was done according to U.S. military specifications. 3M discovered the products at issue on its own.
On Jan. 3, 2024, 3M removed the case to federal court under the federal officer removal statute because the laminates were made as required by the military. Vermont AG Charity Clark and her lawyers challenged removal as outside the 30-day window 3M would know removal would be possible on a federal defense, pointing to their November email.
A trial judge sided with Vermont but 3M appealed to the U.S. Court of Appeals for the Second Circuit, which reversed in an Aug. 18 decision. It found 3M couldn’t have ascertained the issue of the copper-clad laminates from the November email between lawyers.
“Instead, Vermont focuses on the argument that 3M knew or should have known of the possible basis for removal when it received the DEC letter in November 2023,” the court wrote.
“But both the degree of inquiry notice as to potentially relevant jurisdictional facts and the difficulty of inquiry in response to that notice bear on when the basis of removal ‘may first be ascertained’ – and our review of the record convinces us that this is not a case where the jurisdictional facts relevant to removal were within the defendant’s ready knowledge and control – for example, its place of incorporation or principal place of business.”
The trial court did not reach the issue of whether the federal officer defense is enough to keep the case in federal court and must do so now. It had only ruled on the timeliness of the removal.
