State of N.C. v. E.I. Du Pont De Nemours & Co.

State of N.C. v. E.I. du Pont de Nemours & Co., 2025 NCBC 44.

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE

SUPERIOR COURT DIVISION

CUMBERLAND COUNTY 20CVS005612-250

STATE OF NORTH CAROLINA, ex rel.

JEFFREY JACKSON, ATTORNEY

GENERAL,

Plaintiff,

v. ORDER AND OPINION ON

MOTION TO DISMISS FOR LACK

E.I. DU PONT DE NEMOURS AND

COMPANY; THE CHEMOURS OF SUBJECT-MATTER

COMPANY; THE CHEMOURS JURISDICTION

COMPANY FC, LLC; CORTEVA, INC.;

DUPONT DE NEMOURS, INC.; and

BUSINESS ENTITIES 1-10,

Defendants.

1. THIS MATTER is before the Court following the 2 May 2025 filing of the

Motion to Dismiss for Lack of Subject-Matter Jurisdiction (the Motion). (ECF No. 392

[Mot.].) Pursuant to Rule 12(b)(1) of the North Carolina Rules of Civil Procedure (the

Rule(s)), Defendants EIDP, Inc., f/k/a E.I. DuPont de Nemours and Company, The

Chemours Company, and The Chemours Company FC, LLC (collectively, the Moving

Defendants), seek dismissal of this action in its entirety for lack of subject-matter

jurisdiction.

2. For the reasons set forth herein, the Court DENIES the Motion.

Rhine Law Firm, PC by Joel R. Rhine and Ruth Sheehan; North

Carolina Department of Justice by Marc Bernstein and Asher P. Spiller;

Taft Stettinius & Hollister, LLP by Robert A. Bilott and David J. Butler;

Douglas & London, PC by Gary J. Douglas, Tate J. Kunkle, Michael

London, and Rebecca Newman; Levin Papantonio Rafferty by Wesley A.

Bowden; and Kelley Drye & Warren, LLP by Melissa Byroade, Kenneth

Corley, Steven Humphreys, William J. Jackson, Elizabeth Krasnow,

Ivan Morales, Lauren H. Shah, David Zalman, Levi Downing, Julia

Schuurman, Curt D. Marshall, Ivan Morales, Fanny B. Turcios, Nancy

A. Yanochik, Laura W. Duncan, and Frances B. Morris for Plaintiff State

of North Carolina, ex rel. Jeffrey Jackson, Attorney General.

Ellis & Winters, LLP by Jonathan D. Sasser, Thomas H. Segars, Scottie

Lee Forbes, Steven Scoggan, Peter Borden, Madeleine Pfefferle, and

Suraj Vege; McCarter & English, LLP by Lanny S. Kurzweil, Ryan A.

Richman, Candee Wilde, David A. Schlier, Salvatore D’Alia, Amanda L.

Rauer, Nakul Y. Shah, Claire Grega, and Michael Fasciale; Bartlit Beck,

LLP by Katherine L.I. Hacker, Katharine A. Roin, Amy R. McCalib, and

Daniel Brody; and Bradley Arant Boult Cummings LLP by C. Bailey

King, Jr. and Robert R. Marcus for Defendant EIDP, Inc., f/k/a E.I.

DuPont de Nemours and Company.

Ellis & Winters, LLP by Jonathan D. Sasser, Thomas H. Segars, Scottie

Lee Forbes, Steven Scoggan, Peter Borden, Madeleine Pfefferle, and

Suraj Vege; Robinson, Bradshaw & Hinson, P.A. by Steven R. DeGeorge;

McCarter & English, LLP by Lanny S. Kurzweil, Ryan A. Richman,

Candee Wilde, David A. Schlier, Salvatore D’Alia, Amanda L. Rauer,

Nakul Y. Shah, Claire Grega, and Michael Fasciale; Arnold & Porter

Kaye Scholer LLP by Joel M. Gross, Alison Rumsey, Tyler L. Burgess,

Julia H. Wingfield, and Julia Kindlon; and Norris McLaughlin, P.A. by

Margaret Raymond-Flood and Kim Weber for Defendants The Chemours

Company and The Chemours Company FC, LLC.

Robinson, Chief Judge.

I. INTRODUCTION

3. This action arises out of the alleged contamination of North Carolina’s air,

land, and water through operations at a chemical manufacturing facility known as

Fayetteville Works located in Bladen and Cumberland Counties in North Carolina.

Plaintiff State of North Carolina (Plaintiff) alleges that the Moving Defendants have

caused this contamination by using, manufacturing, and discharging polyfluoroalkyl

substances (PFAS), which resist biodegradation, persist in the environment, and

accumulate in people and other living organisms.

4. The Moving Defendants have brought this Motion seeking dismissal of this

action in its entirety, contending that the repeal of N.C.G.S. § 114-2(8)(a) has stripped

the Attorney General, Jeffrey Jackson, of standing to bring this suit, as well as raising

arguments regarding separation of powers concerns.

II. FACTUAL AND PROCEDURAL HISTORY

5. “The filing of a motion to dismiss under Rule 12(b)(1) does not raise an issue

of fact[,] [i]t challenges the jurisdiction of the court over the subject matter.” Journeys

International, Inc. v. Corbett, 53 N.C. App. 124, 125 (1981). The extensive

background of these cases is set forth in previous orders and opinions. See State ex.

rel. Stein v. E.I. DuPont de Nemours & Co., 2021 NCBC LEXIS 75 (N.C. Super. Ct.

Sept. 9, 2021), aff’d in part, remanded in part, State ex rel. Stein v. E.I. du Pont de

Nemours & Co., 382 N.C. 549 (2022)); State ex. rel. Stein v. E.I. DuPont de Nemours

& Co., 2024 NCBC LEXIS 22 (N.C. Super. Ct. Feb, 7, 2024).

6. The Court recites only the factual background relevant to the issues

presented in this Motion.

7. On 13 October 2020, this action was initiated by Plaintiff with the filing of

its Complaint. (See generally Compl., ECF No. 2.) In this action, Plaintiff is

“represented by and through the Attorney General of the State of North Carolina”

pursuant to N.C.G.S. § 114-2. (Compl. ¶ 15; see also Memo. L. Opp’n Defs.’ Mot.

Dismiss at 6 (providing that Plaintiff relies on N.C.G.S. § 114-2(8)(a) to support its

contention that “[t]he State, through its Attorney General, is solely authorized to

bring suit ‘in all matters affecting the public interest’[.]”), ECF No. 106 [MTD Opp.

Br.].)

8. On 3 June 2024, while responding to the Moving Defendants’ Second Set of

Interrogatories, Plaintiff was asked to “identify all facts that support the State’s

contention that the Attorney General Joshua L. Stein, is the appropriate relator to

bring this lawsuit.” (Mot. Ex. A. at 13, ECF No. 392.2 [Ex. A.].) In response, Plaintiff

referred the Moving Defendants to its Complaint and its Memorandum of Law in

Opposition to Defendants’ Motion to Dismiss, and provided that “[t]he Attorney

General is solely authorized to bring suit ‘in all matters affecting the public

interest’[,]” citing N.C.G.S. § 114-2(8)(a). 1 (Ex. A. at 13.) Plaintiff explained that this

action “involves matters that affect the public interest because PFAS discharged,

released, and emitted from Fayetteville Works has contaminated the State’s natural

resources.” (Ex. A. at 13.)

9. On 11 December 2024, the General Assembly repealed N.C.G.S. § 114-

2(8)(a) in its entirety. (See Mot. Ex. B. at 48–49, ECF No. 392.3 [Ex. B.].)

10. Thereafter, discovery concluded on 3 March 2025, and post-discovery

dispositive motions were filed on 2 May 2025. (See ECF No. 294.)

11. Also on 2 May 2025, the Moving Defendants filed the Motion. (See Mot.)

Following complete briefing on the Motion, on 23 July 2025, the Court held a hearing

(the Hearing), where all parties were represented by counsel. (See ECF No. 442.)

1 Plaintiff subsequently amended this response—after the Motion was filed—providing that

“[t]he State acts pursuant to its common law authority consistent with the public trust

doctrine and as parens patriae. The Attorney General is also authorized to bring suit in

matters in which the State has an interest.” (Reply Br. Supp. Mot. 4, ECF No. 431 [Reply].)

12. The Motion is now ripe for resolution.

III. LEGAL STANDARD

13. The Moving Defendants move to dismiss this action in its entirety pursuant

to Rule 12(b)(1). “A Rule 12(b)(1) motion to dismiss represents a challenge to the trial

court’s subject matter jurisdiction over a plaintiff’s claims.” Marlow v. TCS Designs,

Inc., 288 N.C. App. 567, 572 (2023); see also N.C.G.S § 1A-1, Rule 12(b)(1). “In ruling

on a motion to dismiss for lack of standing pursuant to Rule 12(b)(1), the Court ‘may

consider matters outside the pleadings’ in determining whether subject matter

jurisdiction exists[.]” Atl. Coast Conf. v. Bd. of Trs. of Fla. State Univ., 2024 NCBC

LEXIS 53, at **11 (N.C. Super. Ct. Apr. 4, 2024) (quoting Harris v. Matthews, 361

N.C. 265, 271 (2007)). Ultimately, “[t]he plaintiff bears the burden of establishing

subject matter jurisdiction.” Lau v. Constable, 2022 NCBC LEXIS 75, at **10 (N.C.

Super. Ct. July 11, 2022).

IV. ANALYSIS

14. The ultimate question to be answered is whether the Attorney General has

the authority to bring this lawsuit. First, the Court will address whether the

Attorney General has authority to pursue this lawsuit and, if so, where that authority

is rooted. The Court then will turn its attention to whether there are separation of

powers concerns regarding who is allowed to bring the current lawsuit—the Attorney

General or the North Carolina Department of Environmental Quality (NCDEQ).

A. Power of the Attorney General to Originate & Maintain This Action

15. The Court begins by examining the authority of the Attorney General to

originate and maintain the instant case on behalf of the State. 2 This requires

addressing two subsidiary issues: (1) whether N.C.G.S. § 114-2(8)(a), before its

repeal, conferred authority on the Attorney General to originate and maintain the

instant case; and (2) whether, aside from the statutory authority provided by

N.C.G.S. § 114-2(8)(a), the Attorney General has authority under North Carolina

common law to originate and maintain this action.

16. The Court addresses each issue in turn.

1. Attorney General’s Authority under N.C.G.S. § 114-2(8)(a)

Before Its Repeal

17. The Court first turns to the issue of whether N.C.G.S. § 114-2(8)(a), before

its repeal, conferred authority on the Attorney General to originate and maintain the

present case.

18. First, our State Constitution establishes the office of Attorney General. See

N.C. Const. art. III, § 7, cl. 1. (providing that “an Attorney General . . . shall be elected

by the qualified votes of the State[.]”) It further provides that “[his] duties shall be

prescribed by law.” Id. at cl. 2.

19. One such law—N.C.G.S. § 114-2(8)(a)—provided in relevant part that “[the

Attorney General] shall also have the authority to institute and originate proceedings

2 The parties, throughout their filings, refer to the Attorney General’s “standing” to sue,

which appears to conflate the issue of whether Plaintiff, the State, has parens patriae

standing, with the legally distinct issue of whether the Attorney General is the proper relator

to represent the State. This Order and Opinion will, therefore, refer to the Attorney General’s

“power” or “authority” to originate and maintain this case.

before such courts, officers, agencies or bodies and shall have authority to appear

before agencies on behalf of the State and its agencies and citizens in all matters

affecting the public interest.” N.C.G.S. § 114-2(8)(a) (repealed 2024).

20. As noted above, Plaintiff originally cited N.C.G.S. § 114-2(8)(a) in an

interrogatory response when asked what facts supported the contention that

“Attorney General Joshua L. Stein, is the appropriate relator to bring this lawsuit[.]”

(See Ex. A at 13.) Plaintiff later changed its response, 3 (see Reply 4), and now Plaintiff

argues that its original citation of N.C.G.S. § 114-2(8)(a) was in error, (Pl.’s Resp.

Opp’n Mot. 9, ECF No. 418 [Br. Opp.]). Plaintiff now contends that the repeal of the

statute it cited is effectively irrelevant because, even when it was in effect,

N.C.G.S. § 114-2(8)(a) only applied to proceedings before our Utilities Commission

and therefore is inapplicable to the instant case. (Br. Opp. 6–8.)

21. Plaintiff relies on Bailey v. State, a case from the Supreme Court of North

Carolina appearing to limit the breadth of N.C.G.S. § 114-2(8)(a) to proceedings

before our Utilities Commission. See 353 N.C. 142, 154 (2000). However, subsequent

North Carolina Court of Appeals cases limited the holding of Bailey to the first

sentence of the statute—the only sentence at issue in that case—and rejected its

3 The Moving Defendants argued in their briefing on the Motion that Plaintiff’s original

interrogatory response was definitive and limited the Attorney General’s authority for

bringing this lawsuit to strictly N.C.G.S. § 114-2(8)(a). However, as Plaintiff points out, the

interrogatory asked for “what facts supported the contention” that the Attorney General is

the proper relator, not the legal authority he has to originate and maintain this action.

Therefore, the Court does not consider the answer originally given by Plaintiff in its

interrogatory response as limiting the Attorney General’s authority to bring this lawsuit to

his statutory authority. In any event, in its oral argument at the Hearing, the Moving

Defendants’ counsel abandoned the position taken in their briefing on this point.

application to the second sentence as based on dicta. See, e.g., Neuse River Found.,

Inc. v. Smithfield Foods, Inc., 155 N.C. App. 110, 119 (2002) (accepting

N.C.G.S. § 114-2(8)(a) as basis for Attorney General’s authority in a natural resources

case unrelated to our Utilities Commission).

22. The Moving Defendants argue that the statute had wider applicability than

solely to proceedings before the Utilities Commission and that the legislature’s repeal

of that statutory provision in late 2024 left the Attorney General without a proper

basis to pursue this litigation. (Br. Supp. Mot. 5–7, ECF No. 393 [Br. Supp.].) The

Court agrees with the Moving Defendants, at least as to whether the statute pre-

repeal provided a basis for prosecution of this case. As Plaintiff has asserted claims

in this action related to harm done to the State of North Carolina’s natural resources

and conduct related thereto, it is clear that N.C.G.S. § 114-2(8)(a) conferred authority

on the Attorney General to originate and maintain the present case before the

statute’s repeal.

23. As a result, the Court now turns its attention to whether common law

authority exists that also allows the Attorney General to maintain this action given

the repeal of N.C.G.S. § 114-2(8)(a).

2. Common Law Authority of the Attorney General

24. It has long been established that “the Attorney General has had and

continues to be vested with those powers of the Attorney General that existed at the

common law, that are not repugnant to or inconsistent with the Constitution or laws

of North Carolina.” N.C.G.S. § 114-1.1.

25. The Moving Defendants contend that they are “unaware of any North

Carolina authority holding that the Attorney General can sue in a general parens

patriae or public trustee capacity to recover damages for alleged harm to [the] natural

resources or the environment [of North Carolina].” (Br. Supp. 6.) Further, they argue

that because the General Assembly is the “ ‘policy-making agency of our

government’[,]” the repeal of N.C.G.S. § 114-2(8)(a) “stripped the Attorney General of

any common-law power to bring or maintain this action.” (Br. Supp. 6–7.)

26. Plaintiff disagrees, contending that the Attorney General properly

originated and may maintain all of its claims under the Attorney General’s common

law powers (1) to prosecute actions for the protection and defense of the property and

revenue of the sovereign, (Br. Opp. 4), and (2) to originate and maintain suits to abate

public nuisances, (Br. Opp. 8).

27. Notably, at the Hearing, the Moving Defendants seemed to abandon the

argument related to whether a “statute supplants the common law rule” that they

originally raised in their brief in support of the Motion. While the Moving Defendants

did not appear to rest on this argument at the Hearing, the Court determines that

the General Assembly did not clearly divest the Attorney General of his narrower

common law authority through the repeal of N.C.G.S. § 114-2(8)(a). As a result, the

Court now addresses the applicability of the Attorney General’s common law powers

to Plaintiff’s individual claims.

28. North Carolina, upon independence from Great Britain, inherited the

common law of England not repugnant to or inconsistent with its own laws. See

Martin v. Thornburg, 320 N.C. 533, 546 (1987); see also N.C.G.S. § 114-1.1. 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.” Martin, 320 N.C. at 546. The Crown was the sovereign of England; however,

in North Carolina, the People are sovereign. See id. Further, “prosecute” has been

defined as “[t]o follow up; to carry on an action or other judicial proceeding; to proceed

against a person criminally. To ‘prosecute’ an action is not merely to commence it,

but includes following it to an ultimate conclusion.” Prosecute Definition, Black’s

Law Dictionary (5th ed. 1979), available at Westlaw.

29. 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.” Martin, 320 N.C.

at 546. Additionally, North Carolina has a quasi-sovereign interest in its natural

resources, see Georgia v. Tenn. Copper Co., 206 U.S. 230, 237 (1907), and a quasi-

sovereign interest is a form of property interest, see C. D. Spangler Constr. Co. v.

Indus. Crankshaft & Eng’g. Co., 326 N.C. 133, 146 (1990).

30. 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.

a. Environmental Claims: Counts One through Four

31. Plaintiff has brought four claims related to the environmental impacts to

North Carolina’s natural resources as a result of the Moving Defendants’ conduct:

Count One for negligence, Count Two for trespass, Count Three for public nuisance,

and Count Four for fraud. (See Compl. ¶¶ 197–230.)

32. Plaintiff alleges that (1) “Defendants negligently caused the contamination

of the environment, included but not limited to the land, water, air, biota, and other

natural resources, and habitats and ecosystems in the State of North Carolina[,]”

(Compl. ¶ 198); (2) “Defendants intentionally discharged, caused, and continue to

cause PFAS to contaminate air, groundwater, surface water, soils, sediments, biota,

and other property owned or held in trust by North Carolina on behalf of its

citizens[,]” (Compl. ¶ 212); (3) “Defendants have caused . . . environmental

contamination by allowing PFAS to enter into the air, soil, sediments, biota, surface

water, groundwater, and property held” by the State, (Compl. ¶ 218); and (4) the

Moving Defendants knew that “PFAS posed human health and environmental risks”

but “failed to disclose the truth and instead misled the State” regarding the dangers

of PFAS, (Compl. ¶ 225).

33. The Attorney General’s authority to bring a negligence suit for damages to

land, water, and air held by the People as private citizens is encompassed within the

power to prosecute actions for the protection and defense of the property of the

sovereign citizens of North Carolina. Furthermore, the State has an independent

property interest “in all the earth and air within its domain.” Tenn. Cooper

Co., 206 U.S. at 237. The resources at issue in this case, as alleged by Plaintiff, are

either held by North Carolina’s citizens or by the State, or alternatively, the State

has a quasi-sovereign interest in those resources.

34. As to Counts One and Two for negligence and trespass, the harm to the

State’s natural resources and property belonging to the State are harms which the

Attorney General has the authority to prosecute for the protection and defense of the

property of the State. As to Count Three for public nuisance, it has been established

that “[t]he state is the proper party to complain of wrong done to its citizens by a

public nuisance.” Pedrick v. Raleigh & P.S. R. Co., 143 N.C. 485, 489 (1906).

Likewise, as to Count Four for fraud related to concealment of the harm to North

Carolina’s natural resources as a result of the Moving Defendants’ conduct, the Court

concludes that it is clear from the Plaintiff’s pleadings that there is a direct

correlation between the environmental harm endured and the alleged fraudulent

concealment of that harm.

35. Therefore, the Court finds that the Attorney General has common law

authority to originate and maintain this action as it relates to Counts One through

Four for the harm related to Plaintiff’s environmental claims.

b. Fraudulent Concealment Claims: Counts Five through Eight

36. Plaintiff alleges a number of ways the Moving Defendants have concealed

information relating to their discharge of PFAS into North Carolina’s environment,

as well as a series of asset transfers and assumption of liabilities that occurred while

the Moving Defendants were insolvent or that rendered Moving Defendants

insolvent. (See Compl. ¶¶ 225, 231–71.)

37. Plaintiff contends, and the Court agrees, that “[b]ecause the natural

resource-related claims are ‘actions necessary for the protection and defense of the

property . . . of the sovereign people of North Carolina,’ then the fraudulent transfer

claims ineluctably are also ‘necessary for the protection and defense of the property

and revenue’ of the State.” (Br. Opp. 5.)

38. The Court, therefore, concludes that the Attorney General has common law

authority to originate and maintain this action as it relates to Counts Five through

Eight. The power to prevent the fraudulent concealment of activities causing

pollution, which, in turn, harm the property interests of the People and the State, is

included within the Attorney General’s common law authority to prosecute actions

for the protection and defense of the property of the sovereign People and the State.

39. As a result, the Court DENIES the Motion on these grounds, as the

Attorney General had authority at the outset of this case, and continues to have

authority throughout the pendency of this case, to originate and maintain this action

on behalf of the State of North Carolina.

B. The Separation of Powers Does Not Bar the Attorney General from

Maintaining the Instant Case

40. While the Court has determined herein that the Attorney General has

authority to originate and maintain this action, the Court next considers the Moving

Defendants’ additional separation of powers argument, which focuses on their

position that the Attorney General lacks the ability to bring this suit except in the

name of, and at the request of, the NCDEQ.

41. The Moving Defendants contend that the General Assembly “confer[red]

such authority upon the Department of Environmental Quality as shall be necessary

to administer a complete program of water and air conservation, pollution abatement

and control[,]” and, as such, when lawsuits arise related to those duties prescribed to

the NCDEQ, the Attorney General shall “initiate actions in the name of and at the

request of the Department [of Environmental Quality].” (Br. Supp. 10 (quoting

N.C.G.S. § 113-131(d)) (emphasis in original) (footnote omitted).) The Moving

Defendants note that the Attorney General has explicitly not brought this case on

behalf of the NCDEQ. (See Br. Supp. 7 (quoting MTD Opp. Br. 24–25 (noting that

the Attorney General and NCDEQ ‘have distinct and independent objectives’.”)).)

42. Further, the Moving Defendants argue that the Complaint in this action “is

replete with reference to regulatory matters and environmental statutes falling

under the NCDEQ’s purview[,]” and as a result, “[t]his lawsuit falls squarely within

NCDEQ’s regulatory realm[,]” and the Attorney General “impermissibly encroaches

on the power and responsibility that the General Assembly gave to NCDEQ[.]” (Br.

Supp. 12.)

43. Plaintiff counters that contention, arguing that a statute cannot abrogate

the Attorney General’s common law powers absent a clear expression from our

General Assembly. (Br. Opp. 11.) Moreover, Plaintiff argues that “[Defendants’]

environmental statutes are not as plenary as the[y] . . . suggest[,]” because the

NCDEQ is limited in the remedies it may seek in the form of injunctive relief, civil

penalties, and referring matters for criminal enforcement. (Br. Opp. 13.) Conversely,

Plaintiff argues that the Attorney General’s common law powers empower him to

additionally seek damages beyond those statutorily allowed by the NCDEQ. (Br.

Opp. 13–14.)

44. The Court finds that there is no clear expression limiting the Attorney

General’s common law powers with regard to N.C.G.S. § 143-211, which provides that

the State has “a public policy . . . to provide for the conservation of its water and air

resources.” Furthermore, the Court reads N.C.G.S. § 113-131(d) as requiring the

Attorney General to act as attorney for the NCDEQ when the NCDEQ requests it;

however, this does not necessarily bar the Attorney General from representing the

State in natural resource cases without the NCDEQ’s explicit request. Given the

additional fact that NCDEQ lacks statutory authority to seek some of the specific

relief sought in this action, it appears to the Court that only the Attorney General

has the authority to seek such damages and relief for the State and citizens of North

Carolina.

45. Therefore, the Court hereby DENIES the Motion on these grounds.

V. CONCLUSION

46. THEREFORE, the Court hereby DENIES the Motion. The Attorney

General had authority to originate this action, and continues to have authority to

maintain this action pursuant to authority existing under common law.

SO ORDERED, this the 7th day of August, 2025.

/s/ Michael L. Robinson

Michael L. Robinson

Chief Business Court Judge