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In a case of first impression, on November 24, 2025, Michigan's Circuit Court for the County of Kent ruled both federal aviation law and state law barred the State's claims under Part 201 of Michigan's Natural Resources & Environmental Protection Act (NREPA) against the Gerald R. Ford International Airport (GRR) relating to its historic use of PFAS-containing aqueous film-forming foam (AFFF). Mich. Dep't of Env't, Great Lakes & Energy v. Gerald R. Ford Int'l Airport Auth., No. 23-08850-CE (Mich. Cir. Ct. Kent Cnty. Nov. 24, 2025) (EGLE v. GRR).
Key Takeaways
- Federal Preemption: The court held a Federal Aviation Administration (FAA) mandate to use AFFF "as a matter of aviation safety" preempted application of NREPA to the airport.
- State NREPA "Permitted Release": The court also found the airport operated under a valid state-issued license and held PFAS releases related to its AFFF use were therefore "permitted releases" under NREPA.
- As to both the federal preemption and the permitted release issue, the court's opinion relied on general legal principles, which it applied to the aviation and AFFF context.
Background
To ensure the safety of aircraft operations at airports certified under its Part 139 regulations, FAA requires those airports to maintain compliant Aircraft Rescue and Firefighting (ARFF) services. For decades, GRR (like many airports throughout the U.S.) used AFFF containing per- and poly-fluoroalkyl substances (PFAS), including in safety training exercises and in response to actual emergencies, to maintain its certification as a Part 139 airport. GRR also operated pursuant to a license issued by the Michigan Department of Transportation (MDOT) under state law, which affirmed GRR was "in compliance with existing state and federal regulations."
Part 201 of NREPA establishes the primary state-level program in Michigan for cleaning up environmental contamination. The statute exempts "permitted releases" from coverage (MCL - Section 324.20126a(5)), which are defined to include "[a] release in compliance with an applicable, legally enforceable permit issued under state law" (MCL - Section 324.20101(1)(mm)(i)).
Michigan's Department of Environment, Great Lakes and Energy (EGLE), together with the State's Attorney General, sued GRR alleging that, notwithstanding the federal mandates, NREPA required GRR to obtain state permits for its PFAS releases and is seeking response costs, civil penalties, and orders requiring additional investigation and remediation.
Both parties moved for summary disposition. The court denied the State's motion and granted the airport's cross-motion, dismissing the case with prejudice, and holding that the state's claims were:
- Preempted by federal law
- Barred because the MDOT license held by the airport established the airport's use of AFFF constituted a "permitted release" under NREPA.
Analysis
1. Federal Preemption
In its decision, the court invoked "field preemption," noting this applies "where federal law thoroughly occupies the legislative field in question, i.e., the field of aviation safety." (quoting Abdullah v. Am. Airlines, Inc., 181 F.3d 363, 367 (3d Cir 1999). Ultimately, the court held that because "federal preemption applies [to] the use of AFFF as a matter of aviation safety the Plaintiffs cannot force compliance with NREPA, and the Plaintiffs' case must be dismissed."
The court's reasoning relied heavily on FAA's mandates that the airport uses AFFF, and that the AFFF contains PFAS. The court noted that "none of the cases that the Plaintiff's cite to support their claim involved the use of a federally mandated product" and distinguished Goodspeed Airport, LLC v. East Haddam Inland Wetlands and Watercourses Com'n , 634 F.3d 206 (2d Cir. 2011), on grounds that, unlike the airport in Goodspeed, GRR "is licensed by the FAA . . . and [ ] directly mandated the use of AFFF as a matter of aviation safety." The EGLE v. GRR court's determination that federal preemption applied, thus appears to have hinged on its view that FAA's Part 139 certification and NREPA requirements "are in direct conflict with one another."
Accordingly, aviation stakeholders should carefully consider the scope and applicability of FAA's mandates regarding use of PFAS-containing AFFF in evaluating how EGLE v. GRR may affect state claims involving such use. Entities outside the aviation sector may also wish to consider the applicability of EGLE v. GRR on suits based in state law related to the use of other PFAS-containing products where their use is federally mandated.
2. "Permitted Release" Defense Under State Law
The EGLE v. GRR court's decision that GRR's use of AFFF led to "permitted releases" of PFAS is of equal importance to its federal preemption holding.
The EGLE v. GRR court held that even if federal preemption did not bar Plaintiffs' NREPA claims, they were barred by an MDOT license issued to GRR that affirmed the airport was "in compliance with state and federal regulations," including the FAA's Part 139 regulations. The court held that because the MDOT license constituted "an applicable, legally enforceable permit issued under state law," the discharge of PFAS-containing AFFF met the definition of a "permitted release" under NREPA Part 201.
Other states' environmental remediation laws may contain a "permitted release" exemption similar to the NREPA exemption. The scope of such exemptions may be different depending on how a "permitted release" is defined under the applicable statute.
3. Relationship to Federal CERCLA Law and EPA Enforcement Policy
Michigan's decision to pursue an airport for PFAS contamination related to its use of AFFF contrasts with the U.S. Environmental Protection Agency (EPA)'s PFAS Enforcement Discretion Settlement Policy Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). This federal law, also known as "Superfund", provides EPA authority to require parties to clean up contamination of listed hazardous substances and seek response costs incurred by the U.S. The Enforcement Policy was issued on April 19, 2024, under the Biden administration, shortly before it issued a Final Rule listing two types of PFAS (perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS)) as hazardous substances under CERCLA - both PFOA and PFOS are historically ingredients in AFFF. The Trump administration announced earlier this year that it would retain the PFOA/PFOS listing decision, and the Enforcement Discretion Policy remains in place.
Under the Enforcement Discretion Policy, EPA stated its "intent" not to pursue five categories of parties based on "equitable factors," including publicly owned airports and local fire departments, noting many "have been required by [FAA] regulations" (citing 14 CFR part 139) to use AFFF. Notwithstanding its Enforcement Discretion Policy, EPA recently issued an Administrative Compliance Order on Consent (AOC) to the Midcoast Regional Redevelopment Authority, owner of Brunswick [Maine] Executive Airport, requiring it to remediate PFAS contamination related to the airport's use of AFFF. In its press release announcing the AOC, EPA stated it addressed "an August 2024 accidental release of 1,450 gallons of [AFFF] that contained [PFAS] from a fire suppression system hangar."
Next Steps for Regulated Entities
The EGLE v. GRR decision, although limited to one state court, highlights the following considerations for aviation and non-aviation entities alike:
- Assess the role of federal requirements in historical PFAS-related operations—whether use of AFFF or other PFAS-containing products was required by federal law or regulation (including technical standards referenced in applicable regulations).
- Evaluate available "permitted release" protections, including existing or historic permits.
- Monitor ongoing regulatory changes affecting federal mandates to use PFAS-containing products, especially as PFAS-free firefighting foams become available.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
