Judge: Act of war precludes 9/11 environmental claim

3/20/2013 COMMENTS (0)

By Bernard Vaughan

NEW YORK (Reuters) - A federal judge in New York on Wednesday dismissed a lawsuit over cleanup costs related to the attacks of Sept. 11, saying the attacks were an "act of war." But the judge said the reasoning did not necessarily apply in a bigger case over damages caused by the attacks.

U.S. District Judge Alvin Hellerstein said the Port Authority of New York and New Jersey and other defendants are not liable for environmental cleanup expenses claimed by the owners of a nearby property.

"Al Qaeda launched an attack on the most important commercial and political symbols of the United States," wrote Hellerstein, who has presided over several cases related to the attacks. Congress and the U.S. president treated the attacks as an act of war against the United States, he wrote.

Parties in a separate case related to the attacks, meanwhile, are waiting for Hellerstein to decide whether the attacks were an act of war.

In that case, Larry Silverstein, the leaseholder of the World Trade Center properties, seeks to hold American Airlines and its parent, AMR Corp, as well as United Airlines, now United Continental Holdings Inc, responsible for damages from the attacks for allegedly failing to provide adequate airport and airline security.

In February, Silverstein asked Hellerstein to reject an argument from American Airlines that it is not liable because the attacks were an act of war.

Hellerstein has yet to rule on that request. In his ruling Wednesday on the environmental claims, the judge cautioned that the act-of-war defense wouldn't automatically apply in Silverstein's case against the airlines.

"Nothing in this decision ... bears upon that case, or any other 9/11 cases pending before me," Hellerstein wrote.

That distinction gave encouragement to Silverstein on Wednesday.

Hellerstein was "crystal clear" in stating that his decision has no bearing on Silverstein's ongoing litigation against the airlines and their insurers, Bud Perrone, a spokesman for Silverstein Properties, said in a statement. The airline companies' exposure arises from their alleged fault in allowing hijackers to evade airport screening and to board and hijack the United and American airplanes, the statement said.

ENVIRONMENT CASE

In the environmental case, property owner Cedar & Washington Associates LLC sued the Port Authority of New York & New Jersey and other defendants, including American Airlines and parent AMR Corp, United Airlines and companies controlled by Silverstein.

Cedar & Washington was seeking costs for ridding a downtown Manhattan apartment building of ground-up concrete, asbestos and other particles following the attacks under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

Congress passed the statute in 1980 to deal with environmental and health risk caused by industrial pollution. However, the statute featured exceptions to liability, including an act of war.

Hellerstein had earlier dismissed the lawsuit on the grounds that Cedar & Washington had failed to state a legally sufficient claim under CERCLA. But the 2nd U.S. Circuit Court of Appeals in New York last May asked the judge to determine whether the cleanup costs were subject to "an act of war" defense.

Representatives for American Airlines, United Airlines and the Port Authority of New York & New Jersey declined to comment.

Cedar & Washington could not be reached for comment; Jay Spievack, its attorney, declined to comment.

The case is Cedar & Washington Associates LLC v. The Port Authority of New York & New Jersey, U.S. District Court, Southern District of New York, No. 08-9146.

For Cedar & Washington: Jay Spievack of Cohen Tauber Spievack & Wagner.

For American Airlines: Desmond Barry.

For The Port Authority of New York & New Jersey: Adam Randall Sorkin of Shiff Hardin.

http://newsandinsight.thomsonreuters.com/Legal/News/2013/03_-_March/Judg...