The United States Court of Appeals for the Second Circuit has handed down a major decision on responsibility for 9-11 liability. In a decision by Judge Dennis Jacobs, a panel ruled that American Airlines, United Airlines and the World Trade Center leaseholder are not liable for environmental cleanup costs for the attacks in New York City. It is not the conclusion but the rationale that raises concerns about the immunity decision. The panel ruled that none of these parties were responsible for the attacks because it constitutes an act of war. That rationale negates the obvious responsibility of not just the government in ignored numerous indicators of the attacks but the refusal of the airlines to take rudimentary security changes advocated for years such as secure cockpit doors and flight protocols. The decision is In Re September 11 Litigation, 2014 U.S. App. LEXIS 8293.

CERCLA contains a strict liability provision for hazardous waste cleanup on owners and facility operators, on certain persons who arrange for the disposal or treatment of hazardous waste, and on certain persons who transport hazardous waste. 42 U.S.C. § 9607(a)(1)-(4). The purpose is to avoid the public from the clean up costs resulting for corporate negligence. There are however three affirmative defenses in Section 107(b):

There shall be no liability under [CERCLA] for a person otherwise liable 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–

(1) an act of God;

(2) an act of war;

(3) an act or omission of a[n unrelated] third party . . . ; or

(4) any combination of the foregoing paragraphs.

42 U.S.C. § 9607(b) (emphasis added).

However, an “act of war” is not defined in the statute. In defense of the panel, they had a notable statement by the Supreme Court that seemed to answer the question, though some would call it dicta and not binding on lower courts. In Hamdan v. Rumsfeld, 548 U.S. 557, 599 (2006), that Court ruled:

[N]othing in our analysis turns on the admitted absence of either a formal declaration of war or a declaration of martial law. Our focus instead is on the September 11, 2001, attacks that the Government characterizes as the relevant ‘act[s] of war,’ and on the measure that authorized the President’s deployment of military force–the AUMF. . . . [W]e do not question the Government’s position that the war commenced with the events of September 11, 2001 . . . .

Yet, the Court does not treat this as determinative alone and proceeds to examine other grounds for the decision. It then gives cursory treatment to the main argument under International Law in footnote 4 by simply saying:

We recognize that in the international law context, “war” has been traditionally defined “as a ‘use of force or other action by one state against another’ which ‘[t]he state acted against recognizes . . . as an act of war, either by use of retaliatory force or a declaration of war.’” Shell Oil, 294 F.3d at 1061 (quoting two international law treatises).

At based, the decision merely gives sweeping deference to the political characterization of the attack as an act of war by the two other branches. The panel notes:

the September 11 attacks were different in means, scale, and loss from any other terrorist attack. Both coordinate branches of government expressly recognized the September 11 attacks as an act of war justifying military response, and these decisions are worthy of deference. Congress, in the immediate aftermath of 9/11, passed the Authorization for the Use of Military Force (“AUMF”), Pub. L. No. 107-40, 115 Stat. 224 (2001), which “constitute[d] the specific statutory authorization” necessary for the President to enter military hostilities abroad under the War Powers Act, 50 U.S.C. §§ 1541-1548, and “to use all necessary and proper force” against those responsible for the September 11 attacks. Similarly, the President declared that the September 11 attacks were acts of war and treated them as such. See Address Before a Joint Session of the Congress on the United States Response to the Terrorist Attacks of September 11, 37 Weekly Comp. Pres. Doc. 1347, 1347 (Sept. 20, 2011) (“On September 11th, enemies of freedom committed an act of war against our country.”).

Clearly the Executive Branch has a powerful interest in defining such acts as war as opposed to crime. The Congress (both Democrats and Republicans) was virtually passive in passing anything demanded during this period from the Patriot Act to the AUMF. It falls to the courts to impose a dispassionate and independent judgment of what constitutes a war and what constitutes a crime. The analysis may turn out the same way but it behooves a court to do more than defer on such a key constitutional term.

Then there is the absence of any discussion of the failures of the airlines in preventing these attacks with simple security precautions long demanded by pilots and experts. Instead, the panel says that “persons who bear no responsibility for the release of

12 harmful substances” and

The attacks wrested from the defendants all control over the planes and the buildings, obviated any precautions or prudent measures defendants might have taken to prevent contamination, and located sole responsibility for the event and the environmental consequences on fanatics whose acts the defendants were not bound by CERCLA to anticipate or prevent.

But who allowed the attackers to “wrest . . . all control over the planes” in the first place? The terrorists went through porous security gates that were long underfunded and entered planes that did not have the reinforced doors or simple protocols advocated by pilots. Those failures (like the failures of the FBI and CIA contained in various studies) have been buried from public discussion. In a normal case involving crime, a party is allowed to present evidence and a court will rule (without deference) on the question of whether the defendants were warned and failed to stop a crime at a workplace or public event. Once again, this may not change the result but the lack of such substantive review in any decision to date is remarkable.

This is a well-written decision to be sure and there is a good faith basis for the ruling. However, even when cycling the issue through CERCLA, we find ourselves once again at this threshold question on how to characterize the attacks. The Court’s ruling in Hamden was in a very different context but, like the characterization by the Bush Administration, it has produced later ramifications in areas like CERCLA.

I do believe that the airlines (and certainly the government) bear responsibility for the failure to stop these attacks. This does not belittle the attack or excuse the attackers, obviously. The attacks were monstrous and those responsible were murderous fanatics. It is also not some abstraction for me. I knew one of the people killed on the plane that hit the Pentagon and the explosion occurred in my rearview mirror after I had just passed the Pentagon. In the law however we struggle to properly classify events. From the outset, powerful political forces came to bear on the treatment of these attacks as not a crime but an act of war. It was denounced as virtually unpatriotic not to call the attacks an act of war. Of course, the punishment would likely be the same for those responsible. The difference is a matter of presidential power — largely unchecked by constitutional or political limitations.

I recommend reading the opinion which has many strong sections. It is the deference given the initial classification of the attacks however that I find the most interesting.

Click here for the opinion

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