People of the State of Illinois , ex rel. KWAME RAOUL, Attor- ney General of the… v. 3m Company

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-3031
PEOPLE OF THE S TATE OF I LLINOIS , ex rel. K WAME R AOUL, Attor-
ney General of the State of Illinois,
Plaintiff-Appellee,
v.
3M C OMPANY ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois
No. 4:22-cv-04075-SLD-JEH — Sara Darrow, Chief Judge.
____________________
A RGUED M AY 30, 2024 — DECIDED A UGUST 7, 2024
____________________
Before S T. EVE, K IRSCH , and K OLAR , Circuit Judges.
K IRSCH , Circuit Judge. 3M Company operates manufactur-
ing facilities throughout the United States, including in Cor-
dova, Illinois (the Cordova Facility). At the Cordova Facility,
which is located along the banks of the Mississippi River, 3M
produces numerous chemical products, some of which con-
tain per- and polyfluoroalkyl substances (PFAS). Twenty-five
miles downstream from the Cordova Facility sits the United

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2 No. 23-3031
States Army’s Rock Island Arsenal. 3M develops and sells
aqueous film-forming foam (AFFF)—which contains certain
types of PFAS compounds—to the United States military,
some of which is used and stored at the Rock Island Arsenal.
(Because this AFFF complies with military specifications, it is
said to be “MilSpec” AFFF.) However, 3M does not produce
or use MilSpec AFFF at the Cordova Facility.
In March 2022, the State of Illinois sued 3M in Illinois state
court, alleging violations of the Illinois Environmental Protec-
tion Act, 415 ILCS 5/1–5/58.17, the Illinois Fish and Aquatic
Life Code, 515 ILCS 5/1-1–5/50-1, and the Illinois Wildlife
Code, 520 ILCS 5/1.1–5/4.4. The State also brought its claims
under several common law theories. The State alleged that
PFAS from the Cordova Facility contaminated the Mississippi
River. Notably, the State excluded PFAS that contaminated Il-
linois’s environment from any facility other than the Cordova
Facility (including PFAS used in AFFF) from this case.
3M removed the action to federal district court, citing the
federal officer removal statute, 28 U.S.C. § 1442(a)(1), as its ba-
sis for federal jurisdiction. Specifically, 3M argued that it
planned to assert the federal government contractor defense
because some of the alleged PFAS contamination in the Mis-
sissippi River may have come from AFFF that 3M provided
to the U.S. military and which was used or stored at the Rock
Island Arsenal.
The State moved to remand the case back to Illinois state
court. The district court granted the State’s motion, finding
that the case did not relate to a federal act because the State’s
complaint expressly excluded PFAS contamination sourced
from AFFF and instead sought recovery only for

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No. 23-3031 3
contamination from the Cordova Facility (where AFFF is not
produced). 3M appealed.
We review the propriety of the removal of a state-court ac-
tion de novo. Betzner v. Boeing Co., 910 F.3d 1010, 1014 (7th Cir.
2018). Under the federal officer removal statute, a defendant
may remove a state court action to federal court if the suit is
against “any person acting under” a federal officer, and the
suit is “for or relating to any act under color of such office.”
28 U.S.C. § 1442(a)(1). A defendant seeking removal based on
this statute must show the following: (1) it is a person within
the meaning of the statute; (2) it is acting under the United
States (or its agencies or officers); (3) it has been sued “for or
relating to any act under color of such office”; and (4) it has a
“colorable federal defense to the plaintiff’s claim.” Ruppel v.
CBS Corp., 701 F.3d 1176, 1180–81 (7th Cir. 2012) (quotation
omitted).
3M cannot satisfy the fourth element. The federal govern-
ment contractor defense “immunizes government contractors
from state tort law when the government had a hand in a de-
fendant’s allegedly defective design.” Id. at 1183 (citing Boyle
v. United Techs. Corp., 487 U.S. 500, 511–12 (1988)). We need
not delve further into the details of the defense, however, be-
cause the State’s concessions on appeal have foreclosed 3M’s
ability to assert it.
3M’s defense presumes that the PFAS contamination the
State alleges could either have come from the Cordova Facil-
ity or from AFFF out of the U.S. Army’s Rock Island Arsenal.
If the contamination came from AFFF, then the government
contractor defense could apply. This would be true even
though the State’s complaint expressly excluded 3M from lia-
bility for PFAS contamination sourced from AFFF. For

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4 No. 23-3031
instance, if a designated area of the Mississippi River is con-
taminated with PFAS from both the Cordova Facility and
from AFFF, then a factfinder would need to apportion the
contamination between that stemming from the Cordova Fa-
cility (which would not be subject to the government contrac-
tor defense) and that sourced from AFFF (which would po-
tentially be subject to the defense).
Indeed, we have previously noted the viability of the gov-
ernment contractor defense in a similar context. In Baker v. At-
lantic Richfield Co., 962 F.3d 937 (7th Cir. 2020), former resi-
dents of a housing complex sued nine industrial manufactur-
ing companies, alleging that they polluted the soil in and
around the site of the residence with lead and arsenic. Id. at
939. The defendants removed the case to federal court under
the federal officer removal statute, contending that they par-
tially polluted the soil at the government’s direction. Id. at 939,
944. The plaintiffs then moved to remand the case to state
court, which the district court granted. Id. at 940. We reversed.
In doing so, we rejected the plaintiffs’ argument that their
lawsuit disclaimed any contamination arising out of the de-
fendants’ work for the government. Id. at 945 n.3. Instead, we
concluded that the parties’ dispute over “whether the [plain-
tiffs’] injuries ar[o]se from products [the defendants] manu-
factured for the government … is just another example of a
difficult causation question that a federal court should be the
one to resolve.” Id.
Baker might have supplied 3M with a colorable federal de-
fense. But the State clearly and unequivocally conceded at
oral argument that it would not seek relief against 3M for
mixed PFAS contamination—in other words, PFAS contami-
nation arising from both the Cordova Facility and from AFFF

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No. 23-3031 5
from the Rock Island Arsenal. Further, the State expressly
agreed that a factfinder will not need to apportion the PFAS
contamination between sources. Simply put, for the State to
recover against 3M for PFAS contamination in a designated
area, 100% of that contamination must be sourced from the
Cordova Facility. If even a morsel of contamination is not
from PFAS produced at the Cordova Facility (such as AFFF
out of the Rock Island Arsenal), the State’s recovery is barred.
Because of this concession, this case falls outside of the scope
of Baker. 3M cannot present a colorable federal government
contractor defense in line with Baker because the defense is
wholly irrelevant under the State’s theory of recovery. In this
case, 3M is liable for PFAS contamination only in areas where
the contamination is wholly derived from the Cordova Facil-
ity, and the government contractor defense does not apply to
PFAS sourced from that facility. Thus, 3M’s attempt to re-
move the case under the federal officer removal statute fails
under the fourth element.
A FFIRMED

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