In the first and only case by a state attorney general against a commercial airport for PFAS (per- and polyfluroalkyl substances) contamination from firefighting foam, a Barnes & Thornburg team led by partner Charlie Denton won dismissal of the state’s complaint by the trial court. Earth & Water Law served as co-counsel.
On Nov. 24, 2025, the Kent County (Michigan) Circuit Court dismissed the state of Michigan’s lawsuit against Gerald R. Ford International Airport Authority seeking injunctive relief, money damages and civil fines arising from alleged PFAS contamination at the airport. Case No. 23-08850-CE.
In September 2023, the Michigan Department of Environment, Great Lakes and Energy and Michigan Attorney General Dana Nessel filed this lawsuit against the airport alleging that the airport’s federally mandated use of aqueous film-forming foam (AFFF) contained PFAS and resulted in the release of PFAS into the soil and groundwater at the airport. The state plaintiffs moved for partial summary disposition (the Michigan counterpart to summary judgment) seeking a liability determination, an injunction compelling performance of response activities, reimbursement of state response activity costs, and declaratory relief. The airport filed a cross-motion for summary disposition asserting that the complained-of use of AFFF was mandated by the Federal Aviation Administration (FAA), and therefore the state environmental claims were preempted by the federal requirements. The airport also asserted that the AFFF activities that the state alleged caused the PFAS contamination were permitted by the Michigan Department of Transportation licensing the airport operations, which included the AFFF activities at issue.
Following oral argument, the court issued its opinion and order denying the state plaintiffs’ motion and granting the defendant airport’s cross-motion for summary disposition, thereby dismissing the complaint with prejudice. “[T]he Court believes that federal preemption applies and thus prevents the State from suing Airport for alleged NREPA [State “Superfund” counterpart] violations. Additionally, even if compliance with the State is required, the Airport operates under a valid license from MDOT, which has indicated that the Airport is in full compliance with State rules and regulations.”
As to federal preemption, the airport asserted that the state environmental law claims were barred by various federal preemption precedents. The court agreed, finding that “the use of AFFF is a matter of aviation safety, and as a result federal preemption applies and bars Plaintiffs from litigating their claim against the Airport.” The court noted that firefighting foam containing PFAS was “federally mandated,” and thus “the Airport [was] in an impossible situation: compliance with the FAA Part 139 certification and Plaintiffs’ interpretation of NREPA are in direct conflict with each other . . . . Because federal preemption applies, the Plaintiffs cannot force compliance with NREPA, and the Plaintiffs’ case must be dismissed.”
Moreover, the court also found the airport’s use of AFFF-containing PFAS was a “permitted release” since it was pursuant to an MDOT license, which is a “legally enforceable permit issued under State law.”