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SCOTUS Denies Cert. in Ground Zero Environmental Cleanup Case

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By Mark Wilson, Esq. on December 02, 2014 5:58 PM

The Supreme Court yesterday denied a petition for a writ of certiorari in a case that's been going on since 2008, pitting a real estate developer against the owner of the World Trade Center site to figure out who was going to pay for cleanup costs related to the September 11 attacks.

When the real estate developer, Cedar & Washington, wanted to renovate an office building in downtown New York, the state Department of Environmental Conservation and the EPA told the developer the building might contain "WTC dust," consisting of fine particles of concrete along with hazardous substances like lead, mercury, and asbestos that settled in and on the building following the destruction of the World Trade Center towers in 2001.

Someone's Got to Pay

The government agencies wouldn't let Cedar & Washington continue renovation unless it paid for "costly remediation" of these hazardous substances. Cedar performed the remediation, then sued the Port Authority of New York and New Jersey, the owner of the World Trade Center site, and both American and United Airlines for the cleanup costs, claiming they were ultimately responsible for the damage caused by the destruction of the World Trade Center towers.

The defendants raised an affirmative defense in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), which relieves an otherwise liable polluter if the release of pollutants was the result of "an act of war."

The trial court concluded, based on statements made by Congress and the president, that the September 11 attacks were "an act of war" within the meaning of CERCLA. As these attacks were the "sole cause" of the release of pollutants, the district court found that the government couldn't force Cedar & Washington to pay for the remediation of the office building.

An Act of War

The Second Circuit Court of Appeals agreed in May. The purpose of CERCLA, it said, was to "ensure that those responsible for any damage, environmental harm, or injury from chemical poisons bear the costs of their actions." But that purpose isn't furthered where, as in this case, the environmental harm is caused by something outside the developer's control, like an act of war.

Sure, that's fine, but were the September 11 attacks an "act of war" for CERCLA purposes? Avoiding a broad declaration that all terrorist attacks are necessarily acts of war, the court said that the September 11 attacks fit the bill "solely for purposes of construing CERCLA's affirmative defenses."

The court also concluded that the attacks were the "sole cause" of the necessity for environmental remediation, meaning that Cedar & Washington couldn't claim that "the composition of the dust and flying debris would have been less harmful but for actions previously taken by the owners of the airplanes and the real estate."

By refusing to take up the case, the Supreme Court put an end to this long-standing issue of who's going to pay for the cleanup.

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