Jackson’s NC Supreme Court brief defends suit against Chemours

North Carolina Attorney General Jeff Jackson is defending his environmental lawsuit against Chemours and DuPont in a new state Supreme Court brief.

The companies are urging North Carolina’s highest court to rule that Jackson cannot pursue his suit. Chemours and DuPont argue that earlier litigation led by the state Department of Environmental Quality covered the same legal ground.

Oral arguments in the case are scheduled Sept. 15.

As the state litigation proceeds, Jackson and Gov. Josh Stein have criticized the federal government’s recent $450 million deal resolving disputes with Chemours over chemical releases in North Carolina, New Jersey, and West Virginia.

“The Attorney General brings this lawsuit on behalf of the State to recover damages from Petitioners for the decades they spent knowingly discharging toxic chemicals into the environment, poisoning the State’s natural resources,” state Justice Department lawyers led by Solicitor General Nicholas Brod wrote Wednesday in their state Supreme Court brief. “Per- and poly-fluoroalkyl substances — so-called ‘PFAS’ or ‘forever chemicals’ — from Petitioners’ plant have traveled through the air, seeped into the groundwater, flowed down the Cape Fear River, and spread throughout southeastern North Carolina.”

“This is no ordinary pollution,” the Justice Department brief continued. “PFAS are particularly soluble, moving freely through groundwater while migrating across property lines and geographic boundaries. And they are remarkably resistant to the natural degradation that other chemicals face. Worse, PFAS are linked to cancers, kidney and liver problems, developmental defects, and other serious conditions.”

“PFAS thus pose a problem that no North Carolinian can solve alone,” Jackson’s lawyers wrote. “Petitioners have contaminated thousands of square miles of land and hundreds of billions of gallons of groundwater, exposing hundreds of thousands of North Carolinians to unsafe levels of PFAS, with no end in sight. PFAS are in the fish that anglers pull from the Cape Fear River, the waterfowl that move between public game lands and private hunting clubs, and the water that irrigates the crops that feed our State.”

Jackson’s brief criticized the companies for waiting until “roughly five years into this litigation” to challenge the attorney general’s standing to sue.

“Petitioners’ argument rests on the false premise that the State here seeks purely private damages that individual litigants can recover,” Justice Department lawyers wrote. “But the State is not seeking private damages, like lost profits or diminution in value for private property. Rather, it seeks compensatory damages for harm to the natural resource itself. Private injuries do not erase the State’s independent interest or its corresponding authority to seek damages to vindicate that interest.”

“When a company damages a state’s natural resources, it is liable to the State for public injuries and to private parties for personal harms, with trial courts policing this line as a matter of remedy,” the brief continued.

“The Attorney General also has authority to bring this suit for the State,” Jackson’s lawyers argued. “At common law, the Attorney General served as the sovereign’s lawyer. The Attorney General retains that common law authority to represent the State today. No statute repeals that authority here, much less with the clarity that derogation from the common law requires.”

“The Attorney General claims no novel authority here,” his lawyers wrote. “He does not seek to pursue free-floating notions of the public good, step into the shoes of private property owners, or sit as a super-regulator. Rather, the Attorney General is seeking redress for decades of harm to our State’s natural resources. In so doing, he is following well-established common law principles and the text of the statutes that the General Assembly has written.”

Chemours and DuPont argued in a May Supreme Court filing that Jackson has no authority to extract even more money from the companies than an earlier lawsuit settlement requires.

Jackson’s suit is tied to environmental contamination from Chemours’ Fayetteville Works plant on the Cape Fear River. A state Business Court judge ruled in August 2025 that the attorney general could proceed with his complaint.

The state Supreme Court granted a stay in the case in October. Justices split, 5-2, in March when agreeing to hear the companies’ appeal.

“This case is about the State of North Carolina’s attempt to use a second lawsuit to extract substantial money damages from Chemours and its predecessor DuPont after Chemours and North Carolina resolved an earlier lawsuit through a binding consent order,” the companies’ lawyers wrote in their brief this spring. “That consent order required Chemours to, among other things, pay millions of dollars in civil penalties and agree to ongoing remedial efforts to address the release of per- and polyfluoroalkyl substances, commonly known as PFAS, from Chemours’s Fayetteville Works plant.”

“These remedial efforts were designed to prevent the future discharge of PFAS into waterways near Fayetteville Works, reduce emission of PFAS into the air, develop monitoring solutions, and pay for water filtration solutions for private individuals who lived nearby,” the court filing continued. “In agreeing to the consent order, the State represented to Chemours and the trial court that it viewed these measures as ‘effective and comprehensive’ solutions to the environmental concerns over the release of PFAS from Fayetteville Works.”

The North Carolina Department of Environmental Quality pursued the first lawsuit. “But the day after NCDEQ and Chemours entered into the final substantive addendum to that consent order, the Attorney General filed a second suit on behalf of the State against Chemours seeking extensive and unprecedented money damages,” the companies’ lawyers wrote. “The allegations in the Attorney General’s suit are largely identical to those in the earlier NCDEQ suit. The damages that the Attorney General seeks are also co-extensive with damages sought by thousands of North Carolina citizens who have also sued Chemours for private harms that they claim were caused by PFAS from Fayetteville Works.”

The General Assembly, “in the middle of the case,” repealed the state law that the attorney general had used as the basis for his suit, according to the brief. Chemours and DuPont then asked a judge to dismiss the case.

“This prompted the Attorney General to claim — for the first time in five years of litigating this case — that he had authority under the common law alone,” the companies argued. “The trial court agreed and denied Chemours’s and DuPont’s motion.”

The brief points to the “central question” in the case: “does the Attorney General have the authority to bring this environmental protection lawsuit against Chemours and DuPont? The answer is no, given that the state agency charged by the General Assembly to regulate the environment has already brought (and resolved) such a case, Chemours is already operating under a consent order that requires it to take numerous actions to abate the prior discharge of PFAS from Fayetteville Works, and the General Assembly repealed the statute that previously authorized such a lawsuit.”

“Permitting the Attorney General to proceed would remove all incentive for any company to settle with a state regulatory agency if the Attorney General could later sue that same company for money damages for the same alleged harms the agency and the company resolved in the earlier case,” the companies’ lawyers wrote. “And the State’s claimed damages in this lawsuit would subject Chemours to duplicative damages awards with the thousands of North Carolinians pursuing private lawsuits against the company.”

The state Supreme Court granted a writ of supersedeas in March that blocked lower court proceedings in the case. In a separate order, justices split along party lines in deciding to take up the companies’ request to review a lower court ruling favoring Jackson, a Democrat.

The court’s five-member Republican majority issued no commentary about its decision, though Justice Richard Dietz wrote a solo concurring opinion.

“There are two reasons why I support issuing a writ of certiorari here,” Dietz explained. “The first is that this case is right on the cusp of an appeal by right. 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. There can’t be precedent if the issue is unprecedented.”

Dietz’s second reason is that the “entire case meets the criteria” for Supreme Court review. DuPont and Chemours challenge Jackson’s ability to file a lawsuit separate from legal action involving state environmental regulators.

“Were it not for this concurrence, a reader would walk away thinking the Attorney General is bravely rushing in to stop a chemical company who, in the dissent’s words, ‘allegedly perpetrated what is perhaps the most widespread contamination from an industrial facility in North Carolina history,’” Dietz wrote. “But the Attorney General is not leading the charge; he is bringing up the rear.”

“[T]he State of North Carolina has been all over this for years,” Dietz added. “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 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.

State courts normally rule against “claim-splitting,” 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.

Justice Anita Earls wrote for the court’s two dissenting Democrats.

“Defendants allegedly perpetrated what is perhaps the most widespread contamination from an industrial facility in North Carolina history,” Earls wrote. “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. That is, defendants argue that the Attorney General lacks the authority to enforce state law.”

Labeling the majority’s decision an “extraordinary step,” Earls wrote “this Court interrupts factfinding proceedings below in the trial court, further delays justice for allegedly injured communities, and wrongly suggests support for defendants’ untenable position that the state’s Attorney General is powerless to enforce the 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 Supreme Court split, 5-2, last October in granting a temporary stay in the case. The stay blocked a scheduled Business Court hearing. Judge Michael Robinson canceled the hearing after the high court’s ruling.

Stein filed the suit when he served as North Carolina attorney general. Jackson took over the suit when he succeeded Stein in 2025.

Robinson ruled in August 2025 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.

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.”

“Jackson’s NC Supreme Court brief defends suit against Chemours” was originally published on www.carolinajournal.com.