B&D Leads Successful Challenge to Michigan PFAS Rule

On November 15, 2022, the Michigan Court of Claims invalidated Michigan’s maximum contaminant levels for drinking water and related groundwater standards for certain per- and polyfluoroalykl substances (PFAS). The Court held that the state failed to prepare an adequate cost analysis, and therefore its regulatory impact statement was insufficient, invalidating the rule. 3M Company v. Michigan Department of Environment, Great Lakes, and Energy (EGLE), No. 21-00078-MZ. The effect of the decision is stayed until the appeal period runs. 

Beveridge & Diamond litigators brought the case, on behalf of 3M, after Michigan adopted stringent new maximum contaminant levels for seven PFAS. Certain of those maximum contaminant levels automatically became groundwater standards under Michigan law, but EGLE entirely failed to analyze the cost impacts of those groundwater standards. In its twenty-page decision, the Court found that the Department said it “would consider certain costs in a subsequent rulemaking; but then in that subsequent rulemaking, the Department declined to consider those costs, citing the prior promulgated rules as, in effect, a ‘done deal.’” The Court characterized EGLE's actions as playing “a shell game with the public.”

This successful rulemaking challenge highlights the firm’s considerable experience and skill in administrative rulemaking challenges at both the federal and state level. Nessa Horewitch Coppinger and Jayni Lanham represented 3M in this matter. Nessa chairs Beveridge & Diamond’s administrative litigation practice and argued the case before the Court. Numerous publications covered The Court of Claims ruling, including Inside EPA, Global Legal Chronicle, and MLive.

Supported by our robust ChemicalsLitigation, 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.

Jayni counsels companies in a variety of industries on regulatory compliance and represents them in litigation and enforcement proceedings related to a broad range of federal and state environmental, health, and safety (EHS) laws. Her work involves considering historical factual and technical issues, managing complex parallel proceedings in both the criminal and civil regulatory arenas, and collaborating with subject matter experts to find creative solutions to her clients’ complex EHS issues.