Airlines Not Liable for 9/11 Clean Up Costs Under CERCLA - U.S. Second Circuit
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Airlines Not Liable for 9/11 Clean Up Costs Under CERCLA

In just the past year, the Second Circuit has decided at least four 9/11 related cases. It reversed a district court decision, resulting in bringing Saudi Arabia back into litigation, and it affirmed (on other grounds) a district court's dismissal of Con Edison's negligence claims against the World Trade Center building developers.

More recently, the Second Circuit heard oral arguments in a case where atheists are challenging the inclusion of a steel cross, created by debris in the wreckage of the World Trade Center collapse, in a 9/11 museum, and just last week heard arguments in a case that will likely drag former Attorney General John Ashcroft back into court regarding the treatment of 9/11 detainees.

The latest decision stemming from the 9/11 tragedy was handed down earlier this month by the Second Circuit.

In re: September 11 Litigation -- Background

Cedar & Washington ("Cedar") owned, and began renovation on, a building located near the World Trade Center, and was informed by the New York State Department of Environmental Conservation and the United States Environmental Protection Agency that the building must be remediated because of the presence of "WTC Dust" if renovation were to continue. Cedar sued the owners of the World Trade Center, the lessees of the World Trade Center, and the owners of the airlines whose airplanes crashed into the World Trade Center, to recover the costs of remediation.

In re: September 11 Litigation -- Second Circuit Analysis

Cedar based its claims on common law indemnification and Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"). The first time the case was before the Second Circuit, it remanded to the district court to determine whether defendants could use the "act of war" defense to the CERCLA claim. The district court found that the 9/11 tragedy amounted to an "act of war" and defendants could use that as an affirmative defense.

On appeal, the Second Circuit agreed, and stated: "Although CERCLA's strict liability scheme casts a wide net, an "act of war" defense avoids ensnarement of persons who bear no responsibility for the release of harmful substances. The attacks come within this defense."

These cases show that there are just no winners in this situation. As if the owners and lessees of the World Trade Center, and airlines, have not had to deal with enough, lawsuits like this show that we all must share the loss -- economic or otherwise -- for the unfortunate events of September 11, 2001.

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