USA – ALABAMA Trends and Developments Contributed by: John M. Johnson, Brian P. Kappel, Mary Parrish McCracken and M. Elizabeth Harrison, Lightfoot, Franklin & White, LLC
defendants at issue in Ex parte DuPont De Nemours, Inc. ) no longer sell the products in question. Trial Court decisions Alabama’s trial courts have also rendered PFAS-opin- ions that have impacted and will continue to impact environmental litigation for the foreseeable future. For example, a series of decisions have addressed the appropriate scope of a trespass cause of action in cases involving water contamination. On 24 October 2024, the trial court ruled in a case titled The Board of Water and Sewer Commissions of the City of Mobile v 3M Company, et al. that a water provider cannot raise an indirect trespass claim against a group of chemical manufacturer defendants based upon PFAS found in the provider’s raw water source because those con- taminants do not cause substantial, actual damage to the property owned by the providers during the treatment process. The claim failed because the PFAS are removable and do not cause damage to the actual res owned by the water provider. Similarly, a direct trespass claim was not available under Alabama law because those same defendants did not intentionally enter the plaintiff’s property or cause PFAS to enter upon that property. In addition, the City of Mobile decision held that detections of PFAS below regula- tory standards (in that case, the MCLs) which do not trigger any mandatory requirement for treatment (and associated costs) do not constitute cognisable harm under Alabama law. The City of Mobile decision built upon two Alabama federal court decisions that had previously dismissed PFAS-based trespass clams. The Northern District of Alabama, in West Morgan-East Lawrence Water and Sewer Authority, et al. v 3M Company, et al. ( WMEL ), came to the same conclusion as the City of Mobile court, dismissing a water providers’ claim that defend- ant chemical manufacturers had produced PFAS that later made its way into their raw water source (and thus had to be removed). The second decision came from the Middle District of Alabama in The Utilities Board of Tuskegee v 3M Company, et al. , where the court rejected a direct and indirect trespass claim because the PFAS were brought onto the water pro- vider’s property through the provider’s own actions (that is, via the provider’s water intake system). The court held that there was no invasion of that water
provider’s property interest caused by the defendants and therefore no indirect (or direct) trespass. In con- junction with City of Mobile , these two cases narrow the causes of action available to water providers deal- ing with PFAS contamination within the state. Certain Alabama state courts have adopted and fol- lowed City of Mobile and the federal case precedent on this point. A recent example is The Municipal Utili- ties Board of the City of Albertville v 3M Company, et al. , in which the trial court rejected yet another indirect trespass claim on the basis that the plain- tiff, the water provider for the City of Albertville, drew PFAS into its water intakes as the first step in its water treatment operations. Since the PFAS did not come into City of Albertville’s water plant through a “natural process”, Alabama law does not recognise trespass liability against chemical production companies that sold products allegedly containing PFAS that made its way into the city’s raw water. Notably, the City of Mobile decision addressed more than just trespass. The trial court also ruled as a mat- ter of law that the kind of water contamination alleged by the City of Mobile is not cognisable as a private nuisance claim. Instead, the court ruled that contami- nation of a widely used body of water that impacts an entire community’s drinking water supply is a textbook public nuisance. This decision, which has been fol- lowed elsewhere, would potentially foreclose certain monetary damages claims under Alabama law. Other decisions following the City of Mobile reason - ing for private nuisance claims include WMEL and Tuskegee . More recently, the trial court in Albertville reached the same result, holding that “contamination of a public body of water is not a private nuisance. It is, instead, the quintessential public nuisance”. As in City of Mobile , all of these courts rejected a private nuisance claim in the context of PFAS contamination of a body of water used to provide drinking water to a municipality. Consequently, these trial court rulings suggest that only a public nuisance remedy (most prominently injunctive relief) may be available for PFAS plaintiffs. City of Mobile has not been universally adopted, however. That case also dismissed the plaintiff’s neg-
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