North Carolina Court Upholds Attorney General’s Common Law Authority to Pursue PFAS Suit
On August 7, 2025, the North Carolina Business Court denied a motion to dismiss in North Carolina v. E.I. Du Pont de Nemours, affirming the Attorney General’s authority to pursue environmental and fraud claims related to PFAS and GenX discharges. The court held that the Attorney General’s common law authority to protect state natural resources remains intact despite the North Carolina General Assembly’s prior repeal of a statute that had explicitly authorized such enforcement. As PFAS regulation continues to expand across the country, this decision, if followed, would signal that companies involved in PFAS discharge may face liability under common law theories—even in jurisdictions lacking PFAS statutes or where statutory enforcement authority has been rolled back.
Background
In 2020, the North Carolina Attorney General filed suit against multiple entities, alleging that their discharges of effluent contaminated the state’s water, air, and soil with PFAS and GenX compounds. The State’s complaint asserts claims for negligence, trespass, public nuisance, fraud, and fraudulent conveyance. Initially, the Attorney General invoked N.C. Gen. Stat. § 114-2(8)(a) as the statutory basis to bring the case. However, the North Carolina General Assembly repealed that provision in December 2024.
In their motion to dismiss, the defendants argued that the repeal stripped the Attorney General of authority to pursue the case. Moreover, the defendants contended that enforcement authority over environmental harm now rests exclusively with the state Department of Environmental Quality (DEQ), not the Attorney General’s office. This argument, framed as a “separation-of-powers” concern, asserted that allowing the Attorney General to proceed would infringe on the DEQ’s delegated legislative authority from the General Assembly.
Court’s Decision
The court rejected the defendants’ jurisdictional and separation-of-powers challenges in their entirety. The court found that the Attorney General’s authority to pursue the case did not depend on the repealed statute. Instead, it rests on North Carolina’s adoption of English common law, which has long recognized the Attorney General’s quasi-sovereign power to bring actions “necessary for the protection and defense of the property and revenue of the sovereign”—a power that encompasses actions to protect the state’s natural resources. The court found that the State’s claims for negligence, trespass, nuisance, and fraud all fell within this common law authority. That same authority extended to the State’s fraudulent conveyance and concealment claims, given their direct connection to the alleged environmental harm.
The court also dismissed the defendants’ argument that environmental enforcement authority lies solely with the DEQ. While the DEQ may request that the Attorney General represent it in enforcement actions, the court found that nothing in the state’s statutory framework prohibits the Attorney General from initiating suit independently on behalf of the State. Indeed, the court emphasized that certain categories of damages sought in the case may be pursued only by the Attorney General—not by the DEQ.
Key Takeaways
The decision clears the way for the State’s case to move forward to summary judgment or trial. As PFAS-related legislation and regulation continue to expand across jurisdictions, this case stands out as a test of common law enforcement authority—as well as enforcement power in states with a separately elected attorney general who may have a different view from the state’s governor. Stakeholders should closely monitor ongoing developments in this PFAS litigation.
This post is as of the posting date stated above. Sidley Austin LLP assumes no duty to update this post or post about any subsequent developments having a bearing on this post.
