By: Jacob Harris
Landscape of PFAS litigation
Per- and polyfluoroalkyl substances, or PFAS for short, are known as “forever chemicals” because the unique strength of the carbon-fluorine bonds makes these compounds remarkably resistant to degradation, allowing them to persist in the environment.[1] Since the 1940s, the unique qualities of PFAS have been utilized in a range of industrial and commercial uses such as non-stick cookware, stain-resistant clothing, and firefighting foam.[2] Recently, however, PFAS have gained national attention with numerous scientific studies associating exposure with serious health effects.[3] The dangers of PFAS exposure, coupled with its biological and environmental prevalence,[4] have manufacturers facing a wave of mass tort litigation and regulatory pressure similar to that of the asbestos crisis.[5]
PFAS litigation is expansive, ranging from personal injury, public water-supply contamination, and false advertising claims.[6] For example, in the District of South Carolina, thousands of lawsuits over aqueous film forming foams (AFFFs), filed by individual plaintiffs, public water providers, and property owners, have been consolidated in multidistrict litigation.[7] Beyond private litigation, state attorneys generals and administrative agencies have played an active role in PFAS litigation. Thirty-one states have filed suit against corporations in state court seeking accountability for the environmental and public health impact of manufacturing PFAS.[8]
New Jersey: Administrative Action
In August 2025, following a series of bench trials, New Jersey reached what officials hailed as “the largest environmental settlement ever won by a state,” where chemical manufacturers, Chemours, DuPont, and Corteva, agreed to pay $875 million to the state and contribute $1.2 billion for the creation of a remediation fund. [9] The settlement was the result of the consolidation of four actions brought by the New Jersey Department of Environmental Protection against E.I. du Pont de Nemours and Company (DuPont). In its complaints, the State generally alleged that DuPont had violated New Jersey statutes and state common law by releasing PFAS into the environment, despite knowing that they pose a substantial threat to human health and the environment.[10]
North Carolina: Common Law Powers and Independent Action
In North Carolina, state actors have taken a different approach in pursuing PFAS litigation against chemical manufacturers, as demonstrated by the North Carolina Business Court’s recent ruling in State ex rel. Jackson v. E.I. du Pont de Nemours and Company. In 2019, the North Carolina Department of Environmental Quality (NCDEQ), Cape Fears River Watch, and Chemours entered into a consent order requiring Chemours to address PFAS contamination at its Fayetteville facility.[11] In 2020, then Attorney General, Josh Stein, filed an independent action on behalf of the state against DuPont and its spinoffs, alleging negligence, trespass, and fraudulent concealment related to its operations at the same Fayetteville facility.[12]
On May 2, 2025, the defendants moved to dismiss the case for lack of subject matter jurisdiction, arguing that the Attorney General, now Jeffery Jackson, was stripped of authority to bring the suit following the repeal of N.C.G.S. § 114-2(8)(a) and raising broader separation of powers concerns.[13] The North Carolina Business Court denied the motion, holding that the Attorney General has authority to originate and maintain the action pursuant to existing common law.
The Court reasoned that while N.C.G.S. § 114-2(8)(a) had expressly conferred statutory authority for the Attorney General to institute proceedings on behalf of the state “in all matters affecting the public interest”,[14] its repeal did not clearly divest the Attorney General of “his narrower common law authority” pursuant to N.C.G.S. § 114-1.1.[15] Relying on Martin v. Thornburg, the Court found that the actions brought by the Attorney General are within his power to “prosecute all actions necessary for the protection and defense of the property and revenue of the sovereign people of North Carolina.”[16]
In rejecting the defendant’s second argument that N.C.G.S. § 113-131(d) bars the Attorney General from initiating the suit because it was not “in the name of” or “at the request of” the NCDEQ, the Court read the statute as requiring the Attorney General to represent the NCDEQ when requested rather than a prerequisite for the Attorney General’s involvement in natural resource cases.[17] The Court also found persuasive the fact that the specific damages and relief sought by the Attorney General would not be statutorily available to the NCDEQ should it have initiated suit.[18]
Conclusion
As regulations and state frameworks for addressing PFAS are developing, one thing is clear: PFAS (both the substance and the litigation surrounding it) are here to stay. Where New Jersey’s settlement reflects a case driven by the state’s administrative agency, North Carolina’s bifurcated approach of seeking injunctive and monetary relief in independent actions illustrates an alternative for state actors pursuing public accountability against chemical manufacturers in state court. While it is far from certain what the PFAS landscape may look like only a year from now, North Carolina’s recent ruling proves that the common law authority of state attorneys general is just as enduring.
[1] Perfluoroalkyl and Polyfluoroalkyl Substances, Nat’l Inst. Health, https://www.niehs.nih.gov/health/topics/agents/pfc (May 06, 2025).
[2] Id.
[3] Our Current Understanding of the Human Health and Environmental Risks of PFAS, Env’t Prot. Agency, https://www.epa.gov/pfas/our-current-understanding-human-health-and-environmental-risks-pfas (November 26, 2024).
[4] Perfluoroalkyl and Polyfluoroalkyl Substances, supra note 1, (“One report by the Centers for Disease Control and Prevention . . . found PFAS in the blood of 97% of Americans.”).
[5] Hiroko Tabuchi, Lawyers to Plastics Makers: Prepare for ‘Astronomical’ PFAS Lawsuits, N.Y. Times (May 28, 2024), https://www.nytimes.com/2024/05/28/climate/pfas-forever-chemicals-industry-lawsuits.html.
[6] See Anthony G. Hopp et al., PFAS Lawsuits on the Rise: Trends, Risks & Takeaways (June 10, 2025), https://www.steptoe.com/en/news-publications/pfas-lawsuits-on-the-rise-trends-risks-and-takeaways.html#_ftn8.
[7] See id.
[8] Sarah J. Morath, The Active Environmental Agendas of State Attorneys General, State Ct. Rep. (Mar. 13, 2025), https://statecourtreport.org/our-work/analysis-opinion/active-environmental-agendas-state-attorneys-general.
[9] Hiroko Tabuchi, Chemical Makers to Pay N.J. $875 Million to Settle ‘Forever Chemicals’ Claims, N.Y. Times (Aug. 4, 2025), https://www.nytimes.com/2025/08/04/climate/new-jersey-pfas-settlement.html.
[10] N.J. Dep’t of Env’t Prot. v. E.I. du Pont de Nemours & Co., No. CV 19-14758, 19-14765, 19-14766, 19-14767, 2021 WL 6049522, at *1 (D.N.J. Dec. 21, 2021).
[11] Chemours Consent Order, N.C. Dept. Env’t Quality, https://www.deq.nc.gov/news/key-issues/genx-investigation/chemours-consent-order (last accessed Sept. 6 2025).
[12] State ex rel. Jackson v. E.I. du Pont de Nemours & Co., No. 20CVS005612-250, 2025 WL 2254178, at *1 (N.C. Super. Aug. 7, 2025).
[13] Id.
[14] “[The Attorney General] shall also have the authority to institute and originate proceedings before such courts, officers, agencies or bodies and shall have authority to appear before such agencies on behalf of the State and its agencies and citizens in all matters affecting the public interest.” N.C. Gen. Stat. § 114-2(8)(a) (repealed 2024).
[15] State ex rel. Jackson at *3–4.
[16] Id. at *4 (citing Martin v. Thornburg, 320 N.C. 533, 546 (1987)).
[17] Id. at *7.
[18] See id. (“[I]t 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.”).
