Apr 20, 2007 7:41 pm US/Eastern
Court Ruling May Stop 9/11 Air Quality Lawsuits
(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 dust.
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 conscience."
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.
To be the tree that will not bend when the winds of change are blowing, is to be the tree that will be broken in the strongest winds of unknowing.