Court Exempts Airlines from Developer’s Sept. 11 Environmental Claim.

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.

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