Another Legal Ruling Contrary to Justice: 911 First Responders Without Remedy

New York appeals court ruling could spell trouble for 9/11 air quality lawsuits

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 after 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.

EPA spokeswoman Mary Mears called the decision “positive,” but said she could not comment on its potential influence on other cases until it had been reviewed by the agency and Justice Department lawyers.

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.

Original article posted here.