The North Carolina Supreme Court split 5-2 Wednesday in granting a temporary stay in state Attorney General Jeff Jackson’s environmental contamination lawsuit against DuPont and Chemours.
The stay blocks a state Business Court hearing that had been scheduled Thursday in Winston-Salem.
The companies had requested the stay while the state’s highest court considers whether to take the case on appeal. DuPont and Chemours challenge Jackson’s authority to pursue his own lawsuit beyond litigation filed by the state Department of Environmental Quality.
The state’s largest business lobbying group filed a brief supporting the companies and opposing Jackson.
Wednesday’s order offered no comments from the five Republican justices who supported the stay. The court’s two Democrats dissented.
“This stay is not justified by any reasonable standard, and it underscores that this Court is committing an ongoing disservice by failing to articulate and consistently apply objective criteria to our determinations on such motions,” Justice Anita Earls wrote in dissent. “Adherence to equal justice and rule of law principles requires more.”
Earls rejected the companies’ argument that they would be harmed without a stay of the Business Court’s proceedings.
“It should go without saying that even substantial burdens from ongoing litigation do not alone amount to irreparable harm,” Earls wrote. “Nor does the simple prospect of continuing to litigate a complex case in the Business Court constitute irreparable harm or implicate a substantial right.”
“Business Court cases are, by definition, ‘complex,’” she added. “If DuPont were correct, any litigant in the Business Court facing an adverse ruling on a dispositive pretrial motion would be entitled to a temporary stay by this Court while we consider its other petitions to review interlocutory, nonappealable orders. Indulging such ‘piecemeal’ litigation frustrates courts from performing our constitutional obligations to administer ‘right and justice … without favor, denial, or delay.’”
“On the other side, the State advances a colorable argument that it faces irreparable injury from the stay,” Earls wrote. “It points out that defendants are currently planning to engage in transactions that could shield billions of dollars in assets from potential judgment creditors like the State.”
Jackson filed an Oct. 16 document with the state Supreme Court defending his authority to pursue the five-year-old environmental contamination lawsuit.
“This litigation involves what is likely the most widespread contamination from an industrial facility in our State’s history,” state Justice Department lawyers led by Solicitor General Nicholas Brod wrote in representing Jackson.
PFAS chemicals from the companies’ Fayetteville Works plant on the Cape Fear River “have contaminated drinking water and groundwater in at least eight of our eastern counties,” according to the court filing.
“These injuries will persist for the foreseeable future,” Justice Department lawyers wrote. “In this way, Petitioners have substantially and unreasonably interfered with the public’s use and enjoyment of the State’s natural resources. Worse, the chemicals that they released pose significant human-health concerns. The chemicals are linked to cancers, kidney and liver problems, reproductive and developmental defects, and other serious conditions.”
“The Attorney General, acting on the State’s behalf, has sought to hold Petitioners accountable for this massive contamination,” the court filing continued. “In 2020, the State brought this lawsuit, asserting common-law nuisance, negligence, trespass, and fraud claims against Petitioners. The lawsuit seeks damages to remedy the widespread pollution that Petitioners have caused.”
Current Gov. Josh Stein filed the suit when he served as North Carolina attorney general. Jackson took over the suit when he succeeded Stein this year.
“A lawsuit to protect the State’s natural resources and abate a public nuisance falls in the heartland of the Attorney General’s common-law authority — authority that traces its roots to the Founding,” Jackson’s legal team wrote. “The General Assembly has ratified this common-law authority. Specifically, the legislature has recognized that the Attorney General ‘has had and continues to be vested with those powers of the Attorney General that existed at the common law, that are not repugnant to or inconsistent with the Constitution or laws of North Carolina.’”
The legislature “has never passed a statute with the kind of ‘exactness of expression’ that would repeal this recognition of the Attorney General’s common-law authority,” Jackson’s court fling argued.” That is not surprising. To hold otherwise would mean that the General Assembly has barred the Attorney General from recovering money damages that would be appropriated by the legislature to alleviate the harms that Petitioners have visited on communities across eastern North Carolina. No such statute exists.”
The attorney general rejected the companies’ arguments that he is limited to pursuing legal action on behalf of state environmental regulators.
“Petitioners contend that only the Department of Environmental Quality, not the Attorney General, may bring lawsuits to protect the State’s natural resources. Petitioners are mistaken,” Justice Department lawyers wrote. “The General Assembly has given DEQ statutory authority to enforce regulatory compliance through injunctions and civil penalties. The damages claims in this case, by contrast, are claims that only the Attorney General has the power to bring.”
“Thus, the Attorney General is not acting as a second regulator here: This lawsuit does not attempt to change any of the regulatory requirements that apply to Petitioners’ business operations. Nor does it seek double recovery for a remedy that DEQ has already obtained. Instead, it seeks to compensate the State for harms inflicted by Petitioners’ unlawful conduct, shifting the financial burden of cleaning up Petitioners’ pollution in the lower Cape Fear region from taxpayers to the responsible parties that caused this damage,” the court filing added.
“[T]he Attorney General’s common-law authority complements DEQ’s efforts to compel regulatory compliance — just as the General Assembly’s statutory framework envisions,” Jackson’s legal team wrote.
Jackson’s court filing arrived a week after state Business Court Judge Michael Robinson rejected DuPont and Chemours’ request to delay the lawsuit while the state Supreme Court considered the companies’ petition.
Robinson ruled in August that Jackson could continue pursuing the suit.
DuPont and Chemours appealed that ruling to the state Supreme Court on Sept. 26. The companies challenged the attorney general’s authority to file his own suit on top of other legal action initiated by state environmental regulators.
The NC Chamber Legal Institute filed a friend-of-the-court brief on Oct. 3 supporting the companies.
“The Attorney General brought this action against DuPont and Chemours over releases of per- and poly-fluoroalkyl substances (‘PFAS’) from Fayetteville Works, a manufacturing facility,” the companies’ lawyers wrote in their state Supreme Court petition. “He brings this case not on behalf of the North Carolina Department of Environmental Quality (‘NCDEQ’), the regulatory agency that has already sued over PFAS discharges from Fayetteville Works, but on behalf of the State of North Carolina generally.”
“Through this lawsuit, the Attorney General acts as a second environmental regulator who answers only to himself, free from the legislative or administrative rulemaking process,” the petition continued. “The Attorney General seeks to recover substantial money damages based on the supposed need to fund various environmental and related programs, even though Chemours is already funding many similar programs in cooperation with a comprehensive Consent Order it entered into in the litigation brought by NCDEQ concerning PFAS discharges from Fayetteville Works. There is no guarantee that any judgment or settlement in this case would even go towards creating those programs.”
“Moreover, lawsuits brought by thousands of parties, including private citizens and governmental bodies, assert the same alleged injuries to much of the same resources and seek much of the same damages that the Attorney General seeks in this case,” the court filing added.
DuPont and Chemours also raised questions about Jackson’s legal defense of his authority to bring suit.
“The Attorney General previously relied upon a statute, Section 114-2(8)(a), as authorizing him to bring this case,” the companies’ lawyers wrote. “The General Assembly repealed that statute, which empowered the Attorney General to pursue litigation that he thought was in the public interest, at the end of 2024. DuPont and Chemours then moved to dismiss because the Attorney General no longer has standing to prosecute this case.”
“In response, the Attorney General reversed course, arguing that Section 114-2(8)(a) actually never applied, and asserted broad common-law authority to pursue any litigation he deems necessary to protect the property or revenue of North Carolinians,” the petition continued. “The trial court was persuaded by the Attorney General’s position and denied the motion to dismiss.”
“The trial court erred in concluding that the Attorney General has common-law authority to bring this sprawling environmental case. The General Assembly has enacted a comprehensive statutory scheme that tasks NCDEQ, not the Attorney General, with protecting the environment. The Attorney General’s lawsuit impermissibly encroaches into NCDEQ’s domain,” the companies argued.
Robinson’s Aug. 7 order supported the attorney general’s power to pursue his lawsuit.
“North Carolina, upon independence from Great Britain, inherited the common law of England not repugnant to or inconsistent with its own laws,” the judge wrote. “Under English common law at that time, the Attorney General had the power to ‘prosecute all actions necessary for the protection and defense of the property and revenue of the Crown.’ The Crown was the sovereign of England; however, in North Carolina, the People are sovereign.”
“Further, North Carolina law has established that the Attorney General has the power to ‘prosecute all actions necessary for the protection and defense of the property and revenue of the sovereign people of North Carolina,’” Robinson added. “Additionally, North Carolina has a quasi-sovereign interest in its natural resources, and a quasi-sovereign interest is a form of property interest.”
“Therefore, the Court concludes that the Attorney General has had, and continues to have, the power to originate and maintain suits for the protection and defense of North Carolina’s natural resources on behalf of the people of North Carolina and the State as a whole,” the judge wrote.
Robinson rejected DuPont and Chemours’ argument that the AG’s office could act only on behalf of state regulators with the Department of Environmental Quality.
“[T]he Court reads N.C.G.S. § 113-131(d) as requiring the Attorney General to act as attorney for the NCDEQ when the NCDEQ requests it; however, this does not necessarily bar the Attorney General from representing the State in natural resource cases without the NCDEQ’s explicit request,” Robinson wrote. “Given the additional fact that NCDEQ lacks statutory authority to seek some of the specific relief sought in this action, it appears to the Court that only the Attorney General has the authority to seek such damages and relief for the State and citizens of North Carolina.”
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