B&D Leads Successful Challenge to Michigan PFAS Rule Upholding Trial Court Decision

On August 22, 2023, the Michigan Court of Appeals affirmed the trial court’s decision invalidating the state’s maximum contaminant levels for seven per- and polyfluoroalkyl substances (PFAS). In a 2-1 decision, the Court of Appeals affirmed the lower court’s finding that the Michigan Department of Environment, Great Lakes, and Energy (EGLE) violated Michigan’s Administrative Procedure Act (APA). The Court of Appeals found that “[a]lthough EGLE identified the estimated actual statewide compliance costs of the proposed drinking-water rule on businesses and groups, it did not estimate costs that these changes automatically imposed on groundwater cleanup. Failing to do so result in EGLE’s noncompliance with MCL 24.245(3)(n), which in turn means the rules were not promulgated in compliance with the APA, and are invalid.”

Principals Nessa Horewitch Coppinger (Washington, DC) and Jayni Lanham (Baltimore), and Associate Lindsey Selba (Baltimore) represented 3M in the successful rulemaking challenge. Nessa chairs B&D's administrative litigation practice and argued the case before the Court. The decision is scheduled for publication. Bloomberg Law covered the case here.

Supported by our robust Chemicals, Litigation, and Water practices, B&D helps companies—including trade associations and Fortune 500 companies—navigate the increasing regulation of emerging contaminants, including PFAS.

Nessa has led significant trial court and appellate matters, including federal appeals, to a successful conclusion. She has experience with a range of high-stakes litigation, including mass environmental claims, coordinated litigation with federal government entities, class action, and single-party litigation. Nessa also has significant experience with administrative litigation, including multiple PFAS rulemaking challenges in various jurisdictions.