A federal court in New York has held that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) act-of-war exception constituted a defense to the claims of a nearby building owner seeking to recover cleanup costs associated with the collapse of the World Trade Center towers during the September 11, 2001, terrorist attacks and thus provided another reason to dismiss the suit. In re Sept. 11 Litig., Cedar & Washington Assoc., LLC v. Port Auth. of N.Y. & N.J., No. 08-cv-09146 (S.D.N.Y. 3/20/13).

Plaintiff sued various defendants to “recover substantial cleanup and abatement expenses to remove pulverized dust that infiltrated into its building” after the 9/11 collapse. The district court initially dismissed the claims, finding that the statute of limitations had expired, no “release” had occurred within the meaning of CERCLA, and “the building structure and contents” were not “solid waste or hazardous waste” under CERCLA. On appeal, the Second Circuit deferred consideration of the “thorny issues of statutory interpretation” and remanded to the district court to determine whether CERCLA’s act-of-war exception shielded defendants from the claims.

CERCLA provides a complete defense to liability for a defendant “who can establish by a preponderance of the evidence that the release or threat of release of a hazardous substance and the damages resulting therefrom were caused solely by . . . an act of war.” To determine whether the terrorist attacks constituted “acts of war,” the court reviewed what occurred on 9/11, as well as the reaction of the president, who characterized the attacks as acts of war. The court also reviewed the meanings given the phrase “act of war” in other legislation, insurance contracts and “traditional definitions.” Because the U.S. Supreme Court had twice held that legislation authorizing the use of military force in the wake of the 9/11 attacks “triggered” the president’s war powers, the court found that the 9/11 attacks were acts of war.

The court held that, for the defendants who owned, leased property at or operated businesses in the World Trade Center, the act-of-war exception clearly applied, since the buildings would not have become pulverized had the attacks not occurred. For aviation defendants, however, the analysis differed. Plaintiff asserted that they were liable because the planes released fuel and parts. Noting that “no case has held that an airplane crash can constitute a ‘release’ under CERCLA,” the court opined that any such release was not into plaintiff’s buildings, but into the World Trade Center buildings, and stated, “plaintiff could not show that the Aviation Defendants were among the classes that could be sued under CERCLA, or overcome the hurdle of proximate cause.” Still, assuming that plaintiff could sustain a CERCLA claim against these defendants, the court determined that they could also assert a complete defense under CERCLA because plaintiff’s damages arose from an act of war.