ELR Citation: 54 ELR 20161
No(s). 24-1085 (6th Cir. Nov 22, 2024)

In an unpublished opinion, the Sixth Circuit affirmed a district court's order remanding to state court a lawsuit concerning a Michigan airport's use of aqueous film-forming foam (AFFF). Michigan's attorney general (AG) and Department of Environment, Great Lakes, and Energy sued in state court, arguing the owner's use of AFFF, which contains PFAS, led to contamination of the surrounding environment in violation of the state's Natural Resources and Environmental Protection Act. The owner removed the suit to federal court under the federal officer removal statute, arguing it acted under FAA, which mandated the use of AFFF for certified airports. The district court found that compliance with FAA regulations did not meet the "acting under" requirement necessary for federal officer removal, and granted the AG's and Department's motion to remand. The appellate court affirmed, finding that mere compliance with FAA regulations did not constitute "acting under" a federal officer, that FAA regulations and oversight did not, without more, establish the owner was "acting under" a federal officer, and that receipt of federal grant funds tied to regulatory compliance did not establish the type of delegation of authority or direct assistance to a federal officer required under the statute.