Per- and Polyfluoroalkyl Substances (PFAS)-related litigation continues to morph and expand, with states increasingly targeting airports for contamination linked to aqueous film-forming foam (AFFF). Recent legal developments illustrate diverging strategies and emerging precedents for future cases.
It’s important to note that airports operate under a complex regulatory framework where federal mandates (from the Federal Aviation Administration (FAA) and Environmental Protection Agency (EPA)) often dictate operational and safety requirements. Because of this, PFAS responsibilities can differ substantially from other site types. Once contamination leaves airport property, however, additional state and local authorities increasingly come into play.
Against this backdrop, several states are now testing new legal strategies to recover PFAS cleanup costs, most notably New Mexico, New York, and Michigan.
New Mexico: Setting the Stage
In July 2024, New Mexico set the stage as the first state to take a targeted stance in the AFFF multidistrict litigation (MDL No. 2873) by seeking to add Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Superfund cost recovery claims to its existing tort claims against the United States. This strategy leverages EPA’s designation of Perfluorooctanoic Acid (PFOA) and Perfluorooctanesulfonic acid (PFOS) as hazardous substances under CERCLA, enabling states to pursue federal cost-sharing for PFAS cleanup costs.1 New Mexico’s move signaled a shift toward using federal environmental statutes to supplement traditional tort theories—and other states are now following suit.
“Thanks to the U.S. Environmental Protection Agency’s science-driven leadership on PFAS, New Mexico will now hold the U.S. Department of Defense accountable for the monetary costs of clean-up and damages to our environment.” — James Kenney, New Mexico Environment Department Secretary
New York: Adding Superfund Claims to AFFF MDL
Following New Mexico’s lead, New York has moved to add Superfund cost recovery claims under CERCLA to its existing tort claims against the United States in the massive AFFF multidistrict litigation (MDL No. 2873) pending in the U.S. District Court for the District of South Carolina. Let’s review the details of the case:
- Basis for Claims: New York cites EPA’s 2024 rule designating PFOA and PFOS as “hazardous substances” under CERCLA, which the agency reaffirmed in 2025 despite industry challenges.
- Relief Sought:
- Costs for investigating, monitoring, and cleaning up PFAS contamination from AFFF.
- Damages for injuries to natural resources.
- Creation of a monetary abatement fund for future costs.
- Scope: The claims reference contamination at four former or current Air Force or Air National Guard bases in New York.
- Specifically, “New York is asking Judge Richard Gergel to allow it to amend its complaint to add CERCLA claims, citing EPA’s hazardous substance designation as critical support.”
Implication: If successful, this approach could broaden recovery options for states and municipalities, leveraging CERCLA’s strict liability framework to pursue federal cost-sharing for PFAS cleanups.
Michigan: Court Rejects State Enforcement Against Airport
On November 22, 2025, a Michigan state court dismissed the Michigan Department of Environment, Great Lakes, and Energy’s (EGLE) enforcement action against Gerald R. Ford International Airport Authority (GFIAA).
- State’s Position: EGLE alleged the airport violated Michigan’s Natural Resources & Environmental Protection Act (NREPA) by failing to obtain permits and sought fines, cleanup costs, and attorneys’ fees for PFAS contamination from AFFF use.
- Court’s Ruling: Judge George Quist found that federal aviation safety law preempts state cleanup mandates, noting that AFFF use was required by FAA regulations:
- “The use of AFFF is a matter of aviation safety, and federal law governs its application.”
- “State and federal regulations put the airport in an impossible situation regarding compliance.” —Judge Quist
Implication: This ruling may influence other states considering similar actions against commercial airports. If airports cannot be held liable under state law due to federal preemption, states may pivot toward federal cost recovery or target manufacturers instead.
Broader Context
- EPA’s CERCLA Designation: In April 2024, the EPA designated PFOA and PFOS as hazardous substances under CERCLA, triggering reporting requirements and expanding potential liability for cleanup costs. The rule remains in effect following the EPA’s 2025 reaffirmation.
- State Enforcement Trends: So far, Michigan and Washington are the only states that have pursued commercial airports for PFAS cleanups, though litigation against military bases is widespread.
- MDL Landscape: The AFFF MDL now includes over 10,000 cases, with billions in settlements already paid by manufacturers like 3M and DuPont.
Key Takeaways for Stakeholders
- Evolving Litigation Landscape: PFAS-related litigation continues to change and expand, with states increasingly targeting airports for contamination linked to aqueous film-forming foam (AFFF).
- Two back-to-back developments in New York and Michigan highlight diverging strategies and potential precedents for future cases.
- Airports: Federal preemption may shield airports from state enforcement but does not eliminate reputational risk or potential federal cost recovery claims.
- Insurers & Risk Managers: CERCLA designation significantly expands liability exposure for PFAS contamination, making environmental insurance and contractual indemnities critical.
- States & Municipalities: Expect more states to follow NM, NY & MI lead in leveraging CERCLA claims to recover PFAS cleanup costs
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