New Hampshire rebuffs 3M’s attempt to move PFAS case to federal court

Recently, the State of New Hampshire, represented by Attorney General John Formella and a legal team led by Ken Sansone of SL Environmental Law Group, defeated an effort to move its case against 3M Company, E.I. DuPont de Nemours & Company, and The Chemours Company for causing statewide environmental damage with per- and polyfluoroalkyl substances (PFAS) products from the New Hampshire court system.

Nearly four years ago, the state filed suit in the New Hampshire superior court, alleging that 3M, DuPont, and Chemours made defective products containing certain toxic PFAS compounds that have contaminated New Hampshire’s natural resources, including soil, groundwater, surface water, fish, and other wildlife.

Nearly three years later, 3M removed the case from New Hampshire’s state courts to the federal district court, claiming some of the PFAS contamination came from Aqueous Film-Forming Foams (AFFF) that 3M supplied to the United States military so that the case needed to be handled by a federal court. But the State—concerned that 3M was using a tactic to delay the progress of the litigation—asked the federal court to return the case to the state court, arguing that the state’s claims for PFAS from AFFF were actually the subject of a separate lawsuit that was already pending in federal court as part of the AFFF multidistrict litigation, or “AFFF MDL,” and that 3M had waited too long to remove the case.

In April, Chief United States District Judge Landya McCafferty agreed with the state, ruling in an extensive written opinion that, because the State’s claims for AFFF were part of a separate case, 3M had not shown that a “nexus” existed between the state’s claims in this case and its production of AFFF for the United States military, and also that 3M’s attempt at removal was untimely.

According to SL Environmental Law Group, this is the first time that a state suing 3M for PFAS contamination has successfully resisted 3M’s attempts to remove the case to federal court (other states have had their cases transferred to the AFFF MDL before their motions to return the cases to their own courts could be heard, or have had their motions denied).

Ken Sansone, of SL Environment Law Group, who represents the State of New Hampshire, said, “We’re pleased that the court saw 3M’s removal for what it was–a clear attempt to delay the progress of this important effort by the Attorney General to force 3M and other PFAS manufacturers to take responsibility for paying for the cleanup of PFAS contamination in New Hampshire.”

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