- The North Carolina Chamber's legal arm supports an appeal challenging Attorney General Jeff Jackson's lawsuit against DuPont and Chemours over alleged environmental contamination.
- A court filing from the chamber's legal institute touts "clear regulatory regimes." It suggest a trial judge's August ruling could lead to "compliance uncertainty and duplicative proceedings."
- Business Court Judge Michael Robinson ruled in August that Jackson could continue moving forward with the case filed in 2020, when current Gov. Josh Stein served as attorney general.
The North Carolina Chamber’s legal arm is supporting an appeal that challenges state Attorney General Jeff Jackson’s lawsuit against DuPont and Chemours over claims related to environmental contamination.
Business Court Judge Michael Robinson ruled in August that Jackson could continue pursuing the suit filed in 2020 by Jackson’s predecessor as attorney general, current Gov. Josh Stein.
DuPont and Chemours appealed that ruling to the North Carolina 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 request Friday to submit a friend-of-the-court brief supporting the companies.
“The Chamber has an important interest in clear regulatory regimes that businesses can understand how to comply with,” wrote lawyer Troy Shelton. “Overlapping regulatory authority harms North Carolina businesses by creating compliance uncertainty and duplicative proceedings. Parallel Attorney General enforcement that uses different standards makes compliance impossible to achieve with certainty. As a result, businesses face the cost and burden of defending multiple enforcement actions for the same conduct, even after resolving matters with the legislatively designated regulatory agency.”
“If left unreviewed, the decision below is likely to have serious impacts on regulated companies doing business in North Carolina,” Shelton added.
The attorney general “lacks authorization to impose his own vision for environmental regulation on companies that are already regulated by a complete and integrated regulatory regime led by a different administrative agency,” Shelton argued.
Shelton’s court filing arrived a week after the defendants filed a petition asking the state Supreme Court to hear their appeal.
“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. “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 in the dispute 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.”