Administration Defends Former EPA Head Against Ground Zero Liability

The U.S. government asked a federal appeals court last week to find that former Environmental Protection Agency chief Christine Todd Whitman cannot be blamed for telling residents near the World Trade Center site that the environment was safe after the 2001 terrorist attacks.

The government told the 2nd U.S. Circuit Court of Appeals that a judge was wrong to force Whitman to face a 2004 lawsuit by residents, students and workers in lower Manhattan and Brooklyn who said they were exposed to hazardous dust and debris from the fallen twin towers.

“It is difficult to fathom a pull as strong as the need to calm public fears in the wake of the worst terrorist attack in our nation’s history,” government lawyers wrote in papers submitted to the court.

The government lawyers rejected claims that Whitman should be held personally liable for the environmental consequences of the Sept. 11 attacks and made to pay damages to properly clean homes, schools and businesses and forced to create a fund for medical monitoring of victims.

“No decision of any court remotely suggests that a public statement, even a misleading public statement, could violate the substantive due process rights of thousands of individuals,” the papers filed by Department of Justice lawyers in Washington said.

Earlier this year, U.S. District Judge Deborah A. Batts in Manhattan refused to dismiss Whitman as a defendant, calling her actions “conscience-shocking.”

“No reasonable person would have thought that telling thousands of people that it was safe to return to lower Manhattan, while knowing that such return could pose long-term health risks and other dire consequences, was conduct sanctioned by our laws,” Batts wrote.

The government then asked for permission to immediately appeal the decision before a trial could take place. The appeals court in Manhattan has not yet heard arguments.

In its submission, the government noted that the plaintiffs did not allege that the public statements by Whitman were intended to cause harm.

“In essence, plaintiffs invite the court to second-guess … the policy judgments made by federal officials in the wake of the September 11 attacks,” the government said. “That is exactly the type of inquiry that Congress has foreclosed.”

The government said qualified immunity given to public officials was not a defense to liability but was meant “to afford protection to federal officials from the entirety of the litigation process.”

The EPA’s Office of the Inspector General eventually criticized the agency’s response, saying it did not have available data and information to support statements in the days after the attacks that the air was safe to breathe.

The EPA’s internal watchdog found the agency, at the urging of White House officials, gave misleading assurances there was no health risk from the dust in the air after the towers’ collapse.