Top NC court could probe limits of AG’s lawsuit power

North Carolina’s highest court could take up a case that would influence state Attorney General Jeff Jackson’s power to wage future legal battles.

The state’s leading business lobbying group hopes the North Carolina Supreme Court will take the case. Business leaders seek clear guidelines for Jackson’s office.

Jackson’s predecessor as attorney general, current Gov. Josh Stein, filed suit against DuPont and Chemours in 2020. The AG’s office targets the companies’ alleged role in environmental contamination linked to PFAS chemicals produced in Bladen and Cumberland counties.

While fighting the suit, DuPont and Chemours questioned the attorney general’s authority to file the complaint. The companies argued that state law restricted the AG to representing the Department of Environmental Quality in this type of dispute.

Business Court Judge Michael Robinson rejected that argument in August.

“North Carolina, upon independence from Great Britain, inherited the common law of England not repugnant to or inconsistent with its own laws,” Robinson wrote while rejecting a motion to dismiss Jackson’s suit. “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.

“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.

It’s no surprise that DuPont and Chemours disagreed. They filed a Sept. 26 petition asking the state Supreme Court to reverse Robinson’s ruling.

“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 companies argued. “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.”

“There is no guarantee that any judgment or settlement in this case would even go towards creating those programs,” company lawyers warned.

DuPont and Chemours questioned the attorney general’s shifting justification of his legal authority.

“The Attorney General previously relied upon a statute, Section 114-2(8)(a), as authorizing him to bring this case,” company lawyers wrote. “The General Assembly repealed that statute, which empowered the Attorney General to pursue litigation that he thought was in the public interest, at the end of 2024.”

When the companies sought the case’s dismissal, “the Attorney General reversed course, arguing that Section 114-2(8)(a) actually never applied, and asserted broad common-law authority to pursue any litigation he deems necessary to protect the property or revenue of North Carolinians,” the petition continued.

Robinson “erred” in ruling that Jackson could “bring this sprawling environmental case,” the petition argued. “The General Assembly has enacted a comprehensive statutory scheme that tasks NCDEQ, not the Attorney General, with protecting the environment. The Attorney General’s lawsuit impermissibly encroaches into NCDEQ’s domain.”

The North Carolina Chamber’s legal arm supports the businesses.

“The Chamber has an important interest in clear regulatory regimes that businesses can understand how to comply with,” wrote lawyer Troy Shelton for the chamber’s legal institute. “Overlapping regulatory authority harms North Carolina businesses by creating compliance uncertainty and duplicative proceedings.”

“Parallel Attorney General enforcement that uses different standards makes compliance impossible to achieve with certainty,” Shelton added. “As a result, businesses face the cost and burden of defending multiple enforcement actions for the same conduct, even after resolving matters with the legislatively designated regulatory agency.”

“If left unreviewed, the decision below is likely to have serious impacts on regulated companies doing business in North Carolina,” Shelton warned.

DuPont and Chemours are unlikely to win much support in the court of public opinion. Potential damage linked to their PFAS chemicals has generated mountains of negative headlines.

Yet the companies raise a legitimate legal question North Carolina’s highest court might want to address.

The attorney general plays a significant role within state government. Supreme Court justices could clarify whether that role includes the authority to file his own environmental lawsuits.

Mitch Kokai is senior political analyst for the John Locke Foundation.