Few North Carolinians are likely to criticize state Attorney General Jeff Jackson for pursuing an environmental contamination lawsuit against DuPont and Chemours. They’re easy targets.
Yet North Carolina’s Supreme Court will consider in the months ahead whether Jackson has exceeded his authority.
The case’s outcome could have significant implications. It could clarify whether state government can sue an alleged bad actor more than once for the same alleged offenses.
In this case, DuPont and Chemours “allegedly perpetrated what is perhaps the most widespread contamination from an industrial facility in North Carolina history,” Justice Anita Earls wrote on March 20.
Harmful 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 a state government court filing.
Neither DuPont nor Chemours is likely to win a popularity contest in North Carolina.
But the state Supreme Court’s five Republicans agreed to hear the companies’ argument against Jackson’s lawsuit. The order announcing the decision offered no commentary.
Only Justice Richard Dietz provided a clue in a concurring opinion. First, he addressed the unusual circumstances of the companies’ appeal. “Although there is no existing case law authorizing an immediate appeal here, that is likely because the State has never tried something like this before,” Dietz wrote. “There can’t be precedent if the issue is unprecedented.”
The justice also placed Jackson’s lawsuit in context.
“Were it not for this concurrence, a reader would walk away thinking the Attorney General is bravely rushing in to stop a chemical company” from committing harmful acts, Dietz explained. “But the Attorney General is not leading the charge; he is bringing up the rear.”
State government “has been all over this for years,” Dietz wrote. “The State sued Chemours and the two sides fought a lengthy legal battle. Ultimately the trial court entered a consent judgment that included twenty-five pages of mandatory conditions. The court order requires Chemours to accept dozens of new oversight and compliance requirements, help impacted people remediate the contamination, and pay millions and millions of dollars.”
The North Carolina Department of Environmental Quality pursued that litigation separately from Jackson’s current suit.
“The core legal issue raised in this petition is whether the ability of state administrative agencies to do what happened here — sue in defense of the public interest — limits the ability of the Attorney General to do the same,” Dietz wrote.
Courts normally reject “claim-splitting” with one party filing multiple lawsuits targeting the same activity, he explained.
“So the question here is whether this doctrine applies to everyone, or just to everyone except the State,” Dietz wrote. “Does this principle mean the State has an obligation to choose which agency or department pursues relief for a particular wrong? Likewise, does the General Assembly, when it creates a vast administrative state with the power to sue, limit the corresponding power of the Attorney General to also sue for the same harms? Or, instead, is the State the one litigant in our court system who truly gets multiple bites at the same apple?”
“This Court has never answered these questions. They are squarely raised by the petition in this case and ripe to be addressed,” he added.
The state Supreme Court split, 5-2, in taking the case. Earls and Justice Allison Riggs, a fellow Democrat, dissented. They would have allowed the Democrat Jackson to move forward with his suit.
“At issue in this petition is defendants’ stunning proposition that the claims against them should be dismissed because the Attorney General lacks authority to hold defendants accountable for their actions and to recover money damages for injured communities,” Earls wrote. “That is, defendants argue that the Attorney General lacks the authority to enforce state law.”
“Allowing this petition at this stage is particularly egregious in light of the substantial public interests at stake in timely adjudicating these claims and the strong precedent that the Attorney General on behalf of ‘[t]he State is the proper party to complain of wrongs done to its citizens by public nuisance,’” Earls added.
The court’s partisan split is likely to attract attention. So will the high-profile nature of Chemours’ alleged offenses.
Yet Dietz’s “claim-splitting” comments could prove more significant. Given our “vast administrative state,” it will be interesting to see whether North Carolina’s highest court limits government’s ability to pursue multiple legal actions targeting the same alleged harms.
We’ll learn whether the state joins other litigants in getting just one bite at the apple.
Mitch Kokai is senior political analyst for the John Locke Foundation.