Court Ruling May Stop 9/11 Air Quality Lawsuits


Apr 20, 2007

(CBS/AP) NEW YORK An appeals court ruling could spell trouble for New Yorkers
suing the Environmental Protection Agency and its former chief for saying that
sooty Lower Manhattan air was safe to breathe after the Sept. 11 terror attacks.

A three judge panel of the 2nd U.S. Circuit Court of Appeals declared this
week that EPA Administrator Christine Todd Whitman and other agency officials
can’t be held constitutionally liable for making rosy declarations about air
quality in the days following the World Trade Center’s destruction.

The opinion, written by the court’s chief judge, Dennis Jacobs, said opening
EPA workers up to lawsuits for giving out bad information during a crisis could
have a catastrophic side effect.

“Officials might default to silence in the face of the public’s urgent
need for information,” Jacobs wrote.

The ruling, filed Thursday, applied only to a suit brought by five government
employees who did rescue and cleanup work at ground zero, but it contained language
suggesting that similar legal claims could face trouble.

It specifically mentioned a class action lawsuit brought by lower Manhattan
residents who claim Whitman jeopardized their health by declaring that “the
air is safe to breathe” at a time when, according to the EPA inspector
general, a quarter of dust samples were recording unhealthy asbestos levels.

Last year, U.S. District Judge Deborah A. Batts, refused to dismiss that case,
calling Whitman’s statements “conscience-shocking.”

That decision is now on appeal and has yet to be argued before the 2nd Circuit,
but Jacobs indicated a reversal might be imminent, saying outright that the
panel disagreed with Batts’ reasoning.

Those developments brought a blunt assessment from attorney Stephen J. Riegel,
who represented the national guardsman, deputy U.S. Marshal and three city emergency
medical service workers who were the subject of Thursday’s ruling.

“There is a prospect, essentially, that these people will get nothing
through the court system,” Riegel said.

Some preliminary scientific studies have indicated that as many as 400,000
people were exposed to toxic ground zero dust. Hundreds and perhaps thousands
of people have fallen ill, and several have died from lung ailments blamed on
inhaled Trade Center ash.

Thousands of people have sued various government entities over their exposure
to the toxins.

Riegel said his own clients, who worked without respirators as the dust still
swirled because they had heard EPA statements that the air was safe, had decided
not to appeal.

More important decisions are pending: The 2nd Circuit recently announced it
would hear a rare mid-case appeal of lawsuits against the City of New York,
alleging it didn’t do enough to protect rescue and cleanup workers from airborne

Plaintiffs trying to hold government entities accountable for their injuries
have some tough legal hurdles to overcome.

The law generally doesn’t allow citizens to sue the government for mere incompetence,
or failing to prevent someone from being injured; To win, plaintiffs must often
prove that government employees actually created a danger themselves, through
actions “so egregious, so outrageous,” that they “shock the contemporary

Jacobs said Whitman and other EPA officials fell short of violating that standard,
even if they had acted with deliberate indifference.
“A poor choice made by an executive official … is not conscience shocking
merely because for some persons it resulted in grave consequences that a correct
decision could have avoided,” he wrote.

“These principles apply,” he added, “notwithstanding the great
service rendered by those who repaired New York, the heroism of those who entered
the site when it was unstable and on fire, and the serious health consequences
that are plausibly alleged in the complaint.”

An EPA spokesman did not immediately respond to a phone message Friday.

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[Ed. — See also: WCBSTV Channel 2 news report videos, linked at that article:
EPA Head Says Giuliani Administration Knew
” and “Giuliani
Slams Whitman Over 9/11 Air Quality

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