Cedar & Wash. Assocs., LLC v. Port Auth. of N.Y. & N.J. (In re September 11 Litig.)

• Decision Date: 20 March 2013
• Docket Number: Nos. 21 MC 101(AKH), 08 Civ. 9146(AKH).,s. 21 MC 101(AKH), 08 Civ. 9146(AKH).
• Court: U.S. District Court — Southern District of New York
• Parties: In re SEPTEMBER 11 LITIGATION Cedar & Washington Associates, LLC, Plaintiff, v. The Port Authority of New York and New Jersey, Silverstein Properties, Inc., World Trade Center Properties LLC, Silverstein WTC Mgmt. Co. LLC, 1 World Trade Center LLC, 2 World Trade Center LLC, 3 World Trade Center LLC, 4 World Trade Center LLC, 7 World Trade Company, L.P., HMH WTC, Inc., Host Hotels and Resorts, Inc., Westfield WTC LLC, Westfield Corporation Inc., Consolidated Edison Company of New York, AMR Corporation, American Airlines, Inc., UAL Corporation, and United Airlines, Inc., Defendants.

931 F.Supp.2d 496

In re SEPTEMBER 11 LITIGATION Cedar & Washington Associates, LLC, Plaintiff,

v.The Port Authority of New York and New Jersey, Silverstein Properties, Inc., World Trade Center Properties LLC, Silverstein WTC Mgmt. Co. LLC, 1 World Trade Center LLC, 2 World Trade Center LLC, 3 World Trade Center LLC, 4 World Trade Center LLC, 7 World Trade Company, L.P., HMH WTC, Inc., Host Hotels and Resorts, Inc., Westfield WTC LLC, Westfield Corporation Inc., Consolidated Edison Company of New York, AMR Corporation, American Airlines, Inc., UAL Corporation, and United Airlines, Inc., Defendants.

Nos. 21 MC 101(AKH), 08 Civ. 9146(AKH).

United States District Court,

S.D. New York.

March 20, 2013.

Jay B. Spievack, Ginnine Beth Fried, Sari E. Kolatch, Cohen, Tauber, Spievack & Wagner, P.C., New York, NY, for Plaintiff.

Kimberly Ailisa Pallen, Beth D. Jacob, Christopher Walsh, Gibbons P.C., Timothy Joseph Keane, Quirk and Bakalor, P.C., Desmond Thomas Barry, Jr., New York, NY, Edward Francis McTiernan, Gibbons P.C., Charles F. Rysavy, K & L Gates, Newark, NJ, Blair G. Connelly, Peter Lee Winik, Latham & Watkins, LLP, Washington, DC, Peter K. Rosen, Latham & Watkins, LLP, Los Angeles, CA, for Defendants.

ORDER AND OPINION APPLYING CERCLA'S “ACT OF WAR” DEFENSE TO DENY PLAINTIFF'S CLAIMS

ALVIN K. HELLERSTEIN, District Judge.

Plaintiff, Cedar & Washington Associates, LLC (“Cedar & Washington”), the owner of a 12–story property at 130 Cedar Street, one block south of the World Trade Center in lower Manhattan, filed this lawsuit to recover substantial cleanup and abatement expenses to remove pulverized dust that infiltrated into its building from the collapse of the Twin Towers on September 11, 2001. Plaintiff sued the Port Authority of New York and New Jersey, Inc. (“Port Authority”) as the owner of the World Trade Center; various corporations affiliated with New York real estate developer Larry Silverstein as lessees of the World Trade Center (“Silverstein Defendants”); ¹ various other defendants involved with the World Trade Center (“Ground Defendants”); ² and American Airlines, Inc. and United Airlines, Inc., and their holding corporations,³ whose airplanes were hijacked and who had responsibility for screening the passengers who boarded the planes (“Aviation Defendants”).

Defendants collectively filed a motion to dismiss Cedar & Washington's claim. I held that plaintiff had failed to state a legally sufficient claim for relief under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”), 42 U.S.C. § 9601, et seq., and I dismissed the complaint. Order, 21 MC 101, 08 Civ. 9146, Sept. 21, 2010. Specifically, I held:

1. The six-year statute of limitations had expired. 42 U.S.C. § 9613(g)(2)(B); Schaefer v. Town of Victor, 457 F.3d 188, 203–04 (2d Cir.2006).

2. A “spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing” of the inert structures that were the Twin Towers had not occurred and, therefore, there had not been a “release” caused or permitted by any of the defendants. 42 U.S.C. § 9601(22); Goodrich Corp. v. Town of Middlebury, 311 F.3d 154, 168 (2d Cir.2002).

3. The materials that constituted the building structure and contents were not “solid waste or hazardous waste.” 42 U.S.C. § 9603(3).

Plaintiff appealed, and the Court of Appeals, without deciding the “thorny issues of statutory interpretation” of CERCLA that had to be applied to a “unique and unforeseen factual circumstance,” remanded the case to me. Cedar & Washington v. Port Authority, 485 Fed.Appx. 443 (S.D.N.Y.2012). Its mandate, issued May 23, 2012, asked the district court to consider an additional “threshold question”: “whether the attack on the World Trade Center on September 11 was an ‘act of war’ within the meaning of CERCLA's affirmative defense.” Id. The Court of Appeals' mandate was for the limited purpose of allowing the district court to “decide in the first instance whether the act-of-war exception in CERCLA, considered in the context of CERCLA's statutory scheme and the intent of Congress, applies in this case.” Id. at 445. Pending such decision, the court of appeals retained jurisdiction.

Pursuant to the mandate, the parties briefed the act-of-war exception to CERCLA, and I heard argument. I hold, for the reasons expressed in this opinion, that the act-of-war exception to CERCLA liability constitutes a defense to claims under that statute and provides another reason to dismiss plaintiff's CERCLA claims.

I. The Attacks of September 11, 2001, on the World Trade Center and the Pentagon

Soon after the attacks of September 11, 2001, Congress appointed a commission to study the attacks and investigate the circumstances which allowed them to occur. The commission's final report is the source of the information that follows. The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks Upon the United States (2004). Although the parties to this lawsuit have not disputed the information set out in the final report, I do not wish to give it an imprimatur of admissibility. SeeFed. R. Evid. 803(8). There are 9/11 cases still pending, and the parties to those lawsuits may wish, and should have the right, to challenge that information. Nevertheless, for purpose of the motion before me, I adopt the facts set out in the report, as discussed below.

Al Qaeda is an extra-national terrorist organization founded by Osama Bin Laden, cleric Abdul Aziz, and other mujahedeen fighters to continue the “holy war” begun during the Soviet occupation of Afghanistan from 1979 to 1988. Al Qaeda built upon the financial, military, and political network Bin Laden established during the occupation. By mid–1988, Bin Laden was the clear leader of al Qaeda. An inner circle of Bin Laden's closest advisors formed the heart of the organization, while distinct committees handled matters of intelligence, military, finance, politics, and propaganda.

Bin Laden “singled out the United States for attack” as far back as 1992. The 9/11 Commission Report 48. In 1996 and 1998, he issued fatwas declaring holy war against the United States. Bin Laden obtained territory and support to organize and train soldiers for al Qaeda from the Taliban leadership of Afghanistan. Al Queda organized and initiated terrorist attacks in the Middle East and Africa in the 1990s, bombed the American embassies in Tanzania and Kenya in 1998, and attacked the USS Cole while it was anchored in Aden, Yemen, in October 2000. In August 1998, Bin Laden narrowly escaped a retaliatory missile strike by the United States on training camps in Afghanistan. Throughout, Bin Laden kept his focus on the “far enemy,” planning an attack on the United States homeland. Id. at 59.

In late 1998 or early 1999, Khalid Sheik Mohammed joined Bin Laden in formulating a plan to infiltrate terrorists into the United States, have them train there to become pilots, and hijack aircraft they could fly into prominent buildings, with the goal of killing hundreds of people, embarrassing the United States, and paralyzing its leadership. Planning began in earnest in late 1999 with the preliminary selection of recruits to carry out the attacks. In the spring and summer of 2000, the first wave of jihadists began to arrive in the United States. Once there, they took English language classes, melted into various communities, and attended flight schools. Then, Bin Laden and others began selecting and training “muscle hijackers” to storm cockpits and control passengers. This second wave of hijackers began arriving in the U.S. in the spring of 2001 and were assisted by the jihadists who had previously arrived. All the while, they lived and trained off a constant income stream from al Qaeda. All told, the planning and preparation of the attack cost al Qaeda between $400,000 and $500,000. Id. at 172. Nineteen men, trained to hijack and fly aircraft, were organized into four teams.

On the night of September 10, 2001, the terrorists selected for the attack checked into hotels close to their respective fields of operations: Portland, Maine; Boston, Massachusetts; Newark, New Jersey; and Herndon, Virginia. In the early morning of September 11, 2001, the terrorists began to carry out their coordinated plans. Two terrorists cleared security in Portland, Maine, for onward travel on American Airlines flight 11 from Logan airport in Boston to Los Angeles. Eight terrorists cleared security in the American and the United Terminals at Logan; three to travel on flight 11 with the two coming from Portland, and five to travel on United Airlines flight 175 to Los Angeles. A third team of five terrorists boarded American flight 77 at Dulles Airport, also destined for Los Angeles, and a fourth team of four boarded United flight 93 at Newark Airport, destined for San Francisco.

The planes, Boeing 757 and 767 super-jets, were heavily laden with fuel for their cross-country trips. Most of the terrorists flew first or business class to be closer to the cockpits, and carried box-cutters, utility knives, and Mace or pepper spray in their carry-on bags. Once the planes completed their ascents, the teams went into action. Using their weapons, the hijackers attacked the crews, stabbing flight attendants and resisting passengers, forcing open the cockpit doors, and cutting the throats of the pilots, killing them. They used pepper spray and claimed to have bombs, to control the passengers and deter resistance.

American flight 11 took off at 7:59 a.m. from Logan Airport; United flight 175 took off from Logan fifteen minutes later, at 8:14 a.m.; and American flight 77 took off from Dulles Airport at 8:20 a.m. The hijacking of flight 11 began approximately fifteen minutes after takeoff, as the airplane neared its cruising altitude. Flights 77 and 175 were hijacked roughly 30 minutes after their respective takeoffs. The hijackers, upon...