Court Absolves EPA of Negligence in New York Toxic Dust

April 22, 2008

Manhattan, N.Y. – The federal circuit court in New York has cleared the Environmental Protection Agency and its former head Christine Todd Whitman for liability from illnesses brought about by toxic dust and debris following the 9/11 terror attacks.

The complaint, filed by a class of people who live and work mainly in Lower Manhattan and Brooklyn, claimed that government officials misled them by stating that the air quality in the period after the destruction of the World Trade Center towers was safe enough to permit return to homes, schools, and offices.

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.

In its April 22 ruling, the Second Circuit court of appeals held that even if Whitman had decided wisely and her agency’s overall performance deficient, her actions are not sufficient to create constitutional liability for damages to thousands of people under the substantive component of the Due Process Clause.

Further, the appeals court declared that legal remedies are not always available for “every instance of arguably deficient governmental performance”.

The verdict affirmed last year’s trial court ruling, which determined that Whitman and other officials could not be held constitutionally liable. During that time, the court’s chief judge, Dennis Jacobs, also warned that any other ruling on the issue might set a wrong precedent and that government officials might choose to be silent in the face of public demand for information.

According to law, citizens are not allowed to sue the government for mere incompetence, or failing to prevent someone from being injured. To prove negligence, plaintiffs must often establish that government employees actually created a danger themselves, through actions "so egregious, so outrageous," that they "shock the contemporary conscience."

As a result, the appellate court ordered the case remanded with directions to dismiss the complaint against the defendants in the case.