Cedar & Washington Associates, LLC v. Port Authority
751 F.3d 86
2d Cir.2014Background
- Cedar & Washington sues WTC site owner, lessees, and aircraft owners under CERCLA for remediation costs tied to WTC dust.
- The district court on remand concluded the September 11 attacks were an ‘act of war’ under CERCLA and barred liability.
- The district court held the act-of-war defense as sole cause of any release, and Cedar & Washington appealed.
- On appeal, the Second Circuit reviews de novo, accepting well-pled facts in Cedar & Washington’s favor.
- CERCLA provides three defenses; the act of war defense may apply when release is caused solely by war-like events.
- The court recognizes the attacks as acts of war for CERCLA purposes and addresses causation in the sole-cause sense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether September 11 attacks are acts of war under CERCLA | Cedar & Washington argues acts of war qualify under CERCLA's defense. | The defendants contend the attacks fit the act-of-war defense and sever CERCLA liability. | Yes; attacks are acts of war for CERCLA purposes. |
| Whether the attacks were the sole cause of the release of hazardous substances | There could be other contributing factors to contamination. | Attacks overwhelmed and swamp any other contributions, making them the sole cause. | Yes; the attacks were the sole cause of the release. |
| Whether CERCLA’s act-of-war defense bars Cedar & Washington’s CERCLA claim | Defendants should be liable despite the act-of-war defense under CERCLA. | Act-of-war defense precludes CERCLA liability for this release. | Yes; the act-of-war defense bars the CERCLA claim. |
| Whether Cedar & Washington can pursue common-law indemnification | Indemnification may shift loss where others are at fault or required by statute. | No duty or equitable basis; act-of-war defense already bars CERCLA claim. | No; indemnity claim fails when act of war defense applies. |
Key Cases Cited
- Gen. Elec. Co. v. AAMCO Transmissions, Inc., 962 F.2d 281 (2d Cir.1992) (CERCLA should be construed liberally, but defenses are narrow)
- Shell Oil Co. v. United States, 294 F.3d 1045 (9th Cir.2002) (act of war defense context in CERCLA)
- Pan Am. World Airways, Inc. v. Aetna Cas. & Surety Co., 505 F.2d 989 (2d Cir.1974) (narrow reading of act-of-war exclusion in insurance context)
- Hamdan v. Rumsfeld, 548 U.S. 557 (U.S. 2006) (recognizes attacks as acts of war for purposes of military response)
- Hamdi v. Rumsfeld, 542 U.S. 507 (U.S. 2004) (recognizes acts of war context in terrorism debates)
- Burlington Northern & Santa Fe Ry. Co. v. United States, 556 U.S. 599 (U.S. 2009) (CERCLA remedial purpose to allocate cleanup costs)