Court To Hear Ground Zero Liability Case

Story at The New York Sun:

A federal appeals court's reading of an obscure Cold War-era law, passed amid fears of a Soviet nuclear attack, will decide whether the thousands who toiled at ground zero can hold the city liable for their exposure to toxins.

The U.S. 2nd Circuit Court of Appeals, which sits in Manhattan, will hear oral arguments today on whether the city is immune from lawsuits brought by the thousands of firefighters, police officers, and construction workers who searched for survivors and cleaned up on the site of the World Trade Center.

Many of the workers say they now suffer from respiratory ailments linked to arsenic, asbestos, and other toxins found in the air and dust at the site. One estimate, by the lawyer who managed the September 11 Victim Compensation Fund, Kenneth Feinberg, places the cost of settling the suits at more than $1.5 billion.

At issue is a U.S. District Court ruling from last year that allows as many as 10,000 of those workers to press forward with suits against the city. The city is asking a three-judge panel of the federal appeals court to overturn that decision, which was handed down by Judge Alvin Hellerstein, who sits in Manhattan.

The conditions at ground zero have long been under the microscope, with workers alleging that the Environmental Protection Agency put out falsely optimistic air quality reports and that government agencies failed to ensure that workers were wearing respirators. In May, the city's medical examiner amended a woman's death certificate to state for the first time that toxic dust from the site had been a "contributory" cause of death.

But today's arguments, and ultimately whether the suits are upheld or thrown out, will not turn on any single fact about the conditions at ground zero or the city's actions in the days following the terrorist attacks. Instead, the court's decision could hinge entirely on its reading of the New York State Defense Emergency Act.

That law, enacted in 1951, grants immunity from lawsuits to the government and companies responding to an attack. While the enemy the Legislature had in mind was the Soviet Union, Judge Hellerstein's ruling found that the passage of history had not made the law irrelevant. The city, the judge wrote, was certainly entitled to immunity in the days immediately following the attack.

However, the judge said it was an open question whether that immunity extended months later, as work at ground zero continued: "As the emergency condition fades … the need for immunity diminishes and the obligations and duties otherwise imposed once again must be protected," Judge Hellerstein wrote.

A brief filed on behalf of the workers stresses that in the months after the September 11, 2001, attacks, ground zero became a work site where ordinary workplace regulations and responsibilities applied.

During the nine-month cleanup operation, the plaintiffs' brief argues, "the site had been radically transformed from a place of chaos and public emergency to an orderly construction site not unlike those the City of New York has often seen."

The city, on the other hand, contends that it is entitled to immunity for the entire duration of the recovery operation.

The city's brief stresses the law's Cold War history, noting that lawmakers in 1951 were anticipating cataclysmic attacks, from which any recovery would be slow.

"The rescue and recovery from a nuclear attack would greatly exceed — perhaps by years — the roughly nine-month period of the 9/11 rescue and recovery operation," the brief argues.

The panel hearing the case today is to consist of Judges Jon Newman, Sonia Sotomayor, and Richard Wesley.

A lawyer from the firm of Patton Boggs, James Tyrrell, will argue on behalf of the city.

The plaintiffs will be represented today by Kevin Russell of Howe & Russell, P.C., and Brian Shoot of Sullivan Papain Block McGrath & Cannavo, P.C.

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