751 F.3d 86 (2nd Cir. 2014), 10-4197, In re September 11 Litig.
|Citation:||751 F.3d 86|
|Opinion Judge:||DENNIS JACOBS, Circuit Judge:|
|Party Name:||IN RE SEPTEMBER 11 LITIGATION: Cedar & Washington Associates, LLC, Plaintiff-Appellant, v. The Port Authority of New York and New Jersey, Silverstein Properties, Inc., World Trade Center Properties LLC, Silverstein WTC Management Co. LLC, 1 World Trade Center LLC, 2 World Trade Center LLC, 3 World Trade Center LLC, 4 World Trade Center LLC, 7 World|
|Attorney:||SARI E. KOLATCH (Jay B. Spievack, Kara Gorycki, Cohen Tauber Spievack & Wagner P.C., New York, N.Y., Robert D. Fox, Neil Witkes, Manko, Gold, Katcher & Fox LLP, Bala Cynwyd, PA, on the brief), Cohen Tauber Spievack & Wagner, P.C., New York, N.Y., for Appellant. LEAH W. SEARS (Beth D. Jacob, Judit...|
|Judge Panel:||Before: JACOBS, CABRANES, and LIVINGSTON, Circuit Judges.|
|Case Date:||May 02, 2014|
|Court:||United States Courts of Appeals, Court of Appeals for the Second Circuit|
Submitted July 12, 2013.
Cedar & Washington Associates, LLC, appeals from a judgment of the United States District Court for the Southern District of New York (Hellerstein, J.), dismissing its CERCLA indemnity claim for remediation costs it incurred as owner of a building contaminated by toxic dust from the September 11, 2001 attack on the World Trade Center. Because the attack constituted an " act of war" for which CERCLA provides an affirmative defense, we affirm.
Real estate developer Cedar & Washington Associates, LLC, sues the owners and lessees of the World Trade Center (and the owners of the airplanes that crashed into it) under the Comprehensive Environmental Response, Compensation, and Liability Act (" CERCLA" ), 42 U.S.C. § § 9601-9675, seeking recovery of costs incurred in remediating a nearby building contaminated by the September 11, 2001 attack on the World Trade Center. The
case returns to us after a remand to the district court to determine in the first instance whether the defendants are insulated by CERCLA's " act of war" defense. On remand, the United States District Court for the Southern District of New York (Hellerstein, J.) concluded that the attack constituted an " act of war" for purposes of CERCLA's affirmative defense, and that the defendants therefore were entitled to judgment on the pleadings.
We agree. Although CERCLA's strict liability scheme casts a wide net, an " act of war" defense avoids ensnarement of persons who bear no responsibility for the release of harmful substances. The attacks come within this defense. As the " act of war" defense shows, CERCLA was not intended to create liability for the dispersal of debris and wreckage from a catastrophe that was indistinguishable from military attack in purpose, scale, means, and effect. Both the President and Congress responded to the September 11 attacks by labeling them acts of war, and this classification warrants notice, and perhaps some deference, in the CERCLA context. The decisive point is that the attacks directly and immediately caused the release, and were the " sole cause" of the release because the attacks " overwhelm[ed] and swamp[ed] the contributions of the defendant[s]." In re September 11 Litigation, 931 F.Supp.2d 496, 512 (S.D.N.Y. 2013) (quoting William H. Rodgers, Jr., Environmental Law: Hazardous Wastes and Substances § 8.13 (1992)).
After the September 11, 2001 attacks that leveled the World Trade Center (" September 11 attacks" ), real estate developer Cedar & Washington began renovating its leased 12-story downtown office building into a 19-story business hotel. In late 2004, the New York State Department of Environmental Conservation and the United States Environmental Protection Agency notified Cedar & Washington that the interstitial spaces of the building might contain finely-ground substances from the World Trade Center, including concrete, asbestos, silicon, fiberglass, benzene, lead, and mercury: so-called " WTC Dust." To permit renovation to continue, the government agencies required Cedar & Washington to perform costly remediation. In this suit, Cedar & Washington seeks to recover those costs from: the owner of the World Trade Center site, lessees of World Trade Center buildings, and the companies that owned the two aircraft that were crashed into the towers.
The claims are premised on CERCLA and common-law indemnification. The district court initially dismissed the complaint on statute of limitations grounds and (alternatively) on the ground that Cedar & Washington failed to allege a necessary element of a CERCLA cost recovery claim: either a " release" or a " disposal" of hazardous substances. In re September 11 Litigation, No. 08-9146 (AKH), 2010 WL 9474432 (S.D.N.Y. Sept. 22, 2010) (citing 42 U.S.C. § 9607(a)(1)-(2)). On appeal, we declined to resolve these " thorny questions of...
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