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In re September 11 Litig.

United States Court of Appeals, Second Circuit

May 2, 2014

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 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-Appellees

Submitted July 12, 2013.

Page 87

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.

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, Judith S. Roth, on the brief), Schiff Hardin LLP, New York, N.Y., for Appellee The Port Authority of New York and New Jersey.

Richard Williamson, Thomas A. Egan, Flemming Zulack Williamson Zauderer LLP, New York, N.Y., for Appellees Silverstein Properties, Inc., et al.

Christopher Walsh, Paul M. Hauge, Gibbons P.C., Newark, N.J., for Appellees Host Hotels and Resorts, Inc. & HMH WTC, LLC.

PETER L. WINIK, Latham & Watkins LLP, Washington, D.C., for Appellees Westfield WTC LLC & Westfield Corp., Inc.

Charles F. Rysavy, Dawn M. Monsen, K& L Gates LLP, Newark, N.J., for Appellee Consolidated Edison Co. of New York, Inc.

MAURA K. MONAGHAN (Roger E. Podesta, Debevoise & Plimpton, New York, N.Y., Desmond T. Barry, Jr., Condon & Forsyth LLP, New York, N.Y.), Debevoise & Plimpton, New York, N.Y., for Appellees American Airlines, Inc. & AMR Corp.

Jeffrey J. Ellis, Quirk and Bakalor, P.C., New York, N.Y., Michael R. Feagley, Mayer Brown, LLP, Chicago, Ill., for Appellees United Air Lines, Inc. & United Continental Holdings, Inc.

Before: JACOBS, CABRANES, and LIVINGSTON, Circuit Judges.

OPINION

Page 88

DENNIS JACOBS, Circuit Judge:

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

Page 89

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 ...


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