CERCLA (aka Superfund) has very few delineated defenses, and it is (almost) even more rare that a court upholds one, but the “act of war” defense has thus far been used successfully by the former World Trade Center owner and the airlines involved in the 9/11 attacks against a CERCLA claim by a developer of another property in lower Manhattan. The collapse of the World Trade Center buildings released a toxic mix of dust and debris, including asbestos, lead, and other hazardous materials that blanketed many areas. The District Court agreed that the “act of war” defense applied despite a formal declaration of war by Congress, and the Second Circuit Court of Appeals agreed: “”War, in the CERCLA context, is not limited to opposing states fielding combatants in uniform under formal declarations….”
The court opinions restate the obvious – that 9/11 was a horrible, unprecedented event in our nation’s history and was an “act of war” without need for reference to the antiquated views of “war” as an act of nation v. nation.
For more info, see also: http://www.courthousenews.com/2014/05/02/67560.htm