9/11 Heroes Get Screwed Over Again

Court Backs EPA Chief in 9/11 Toxins Case

JOSEPH GOLDSTEIN
New York Sun
Friday, April 20, 2007

A federal appellate court has decided that it was not "conscience-shocking" for the head of the Environmental Protection Agency to have reassured New Yorkers that the air near ground zero was safe following the September 11, 2001, terrorist attacks, even if the air was toxic.

Yesterday's decision by the 2nd U.S. Circuit Court of Appeals throws out a lawsuit against a former leader of the EPA, Christine Whitman.

The panel of three judges reasoned that the government's interest in returning New York to normalcy following the attacks should protect it from lawsuits alleging that the government made false statements about air quality. The court did not make any factual finding as to the quality of the air, or as to whether the EPA had intentionally misled the public, which Ms. Whitman has denied doing.

"When great harm is likely to befall someone no matter what a government official does, the allocation of risk may be a burden on the conscience of the one who must make such decisions, but does not shock the contemporary conscience," the circuit's chief judge, Dennis Jacobs, wrote. "These principles apply 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."

Whether a government official's actions are "conscience-shocking" is a legal standard that decides whether an official is liable, in certain types of lawsuits.

"I always thought that if you accepted they were lies — lies to get these people working down there — that those lies were inherently conscience-shocking," the lawyer who brought the case, Stephen Riegel of Weitz and Luxemberg P.C., said.

The lawsuit was a class action on behalf of those who searched for survivors and cleaned up ground zero following the attacks. The men now suffer respiratory ailments, Mr. Riegel said.

A spokesman for the Justice Department declined to comment.

The court's holding in this case suggests that it will also dismiss a similar suit brought on behalf of residents near to the World Trade Center. The ruling yesterday is unlikely to have a result on another class action on behalf of workers at ground zero, which was brought under a different legal theory, Mr. Riegel said.

The panel also included judges Reena Raggi and Robert Sack.