WTC Owners Dodge Bill for September 11 ‘Act of War’

By Adam Klasfeld Courthouse

MANHATTAN (CN) – Since the World Trade Center attacks were an “act of war,” the former building’s owner is not liable for toxic dust that landed on a building in Lower Manhattan, the 2nd Circuit ruled Friday.

The building collapse on September 11, 2001, spewed a toxic mix of asbestos, silicon, fiberglass, benzene, lead and mercury throughout Lower Manhattan, and some of the dust landed upon a nearby 12-story office building developed by Cedar & Washington Associates.

In 2008, the developer sued the owners of the fallen towers, and the airplanes that crashed into them, in federal court under a statute commonly known as Superfund law. Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act, or CERCLA, in 1980 to force polluters to pay for the federal government’s cleanup of the environmental contamination that they cause.

U.S. District Judge Alvin Hellerstein dismissed Cedar’s lawsuit last year because Superfund law absolves companies that can tie pollution to an “act of war.”

A three-judge panel unanimously agreed with that finding on Friday.

“War, in the CERCLA context, is not limited to opposing states fielding combatants in uniform under formal declarations,” Judge Dennis Jacobs wrote for the court.

“At the same time, the district court wisely avoided a broad or categorical holding. None was needed because the September 11 attacks were different in means, scale, and loss from any other terrorist attack. Both coordinate branches of government expressly recognized the September 11 attacks as an act of war justifying military response, and these decisions are worthy of deference.”

Leah Ward Sears, a partner in Schiff Hardin LLP representing the Port Authority of New York, applauded the ruling.

“I am very pleased with the result, and believe that the Court of Appeal’s decision is a correct one under the circumstances of this particular case,” Sears said in an email. Cedar’s lawyer did not immediately respond to a telephone request for comment.

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