931 F. Supp. 2d 496
S.D.N.Y.2013Background
- Cedar & Washington sues Port Authority, Silverstein entities, Ground Defendants, and Aviation Defendants for CERCLA cleanup costs from 9/11 World Trade Center dust.
- This court previously dismissed for failure to state a CERCLA claim and ruled time limits; court remanded to decide if act-of-war defense applies.
- 9/11 Commission facts adopted for purpose of motion; 9/11 attacks treated as acts of war by Congress and President.
- AUMF authorized force against those who planned or aided the attacks; U.S. response framed as wartime actions.
- Court analyzes act-of-war defense under CERCLA, applying a narrow construction of the defense.
- Aviation Defendants are not accused as World Trade Center owners/operators and are dismissed absent CERCLA liability and linkage to a release.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the act-of-war defense bars CERCLA liability | Cedar & Washington argues no defense applies to nearby building dust. | Defendants contend the act-of-war defense extinguishes liability. | Yes; act-of-war defense provides complete dismissal for eligible defendants. |
| Who can invoke the act-of-war defense (all or some defendants) | World Trade Center owners/lessees and operators should be covered. | Only those connected to the act of war can invoke the defense. | Owners, lessees, and Ground Defendants may invoke; Aviation Defendants similarly barred if CERCLA liability arises from act of war. |
| Does the act-of-war defense apply to Aviation Defendants | Aviation Defendants caused or contributed to the release via crashes. | Aviation Defendants are not within CERCLA categories and the defense is inapplicable. | Aviation Defendants can invoke act-of-war defense; claim against them dismissed. |
| Is the act-of-war defense limited to traditional acts of war or include terrorism-linked acts | 9/11 was an act of war by al Qaeda; defense should apply. | The defense traditionally limited; terrorism not clearly defined as act of war. | Court recognizes act of war as applicable to 9/11 given U.S. response and AUMF; defense narrowly applied. |
Key Cases Cited
- Niagara Mohawk Power Corp. v. Chevron U.S.A., Inc., 596 F.3d 112 (2d Cir.2010) (CERCLA strict liability with narrow act-of-war defense limits)
- United States v. Shell Oil Co., 294 F.3d 1045 (9th Cir.2002) (act-of-war defense limited; wartime govt involvement not sole pollution source)
- Pan American World Airways, Inc. v. Aetna Casualty & Surety Co., 505 F.2d 989 (2d Cir.1974) (insurance view distinguishes acts of war vs terrorism)
- Gill v. Arab Bank, 891 F. Supp. 2d 335 (E.D.N.Y.2012) (ATA allows terrorism acts as recoverable; act-of-war not applicable to terrorism case)
- Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (AUMF-triggered war powers; detention as war incident)
- Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (military commissions; war powers context without formal declaration)
- New York Life Ins. Co. v. Bennion, 158 F.2d 260 (10th Cir.1946) (act of war treated as such despite absence of formal declaration)