05/27/2014 05:14 pm ET Updated Jul 27, 2014

9/11 an 'Act of War' Under Federal Environmental Law

The tragic events of September 11, 2001, continue to echo through the U.S. legal system. A recent decision of the federal Court of Appeals for the Second Circuit (In Re September 11 Litigation) involved an interpretation of the exceptions to liability under the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). CERCLA imposes strict liability (liability without fault) upon property owners and facility operators for hazardous waste contamination clean-up costs. However, CERCLA contains exceptions from liability for damages caused by an Act of God, an Act of War, or the act or omission of an unrelated third party. The question before the Second Circuit was whether or not the owners of the World Trade Center and airlines would be liable for the clean-up of a nearby building that was contaminated by the dust and small particles associated with the so called "WTC Dust." The Second Circuit upheld the trial court's decision that the Act of War exclusion prevented liability.

The CERCLA legislation does not define "act of war." To determine its meaning, the Court stated that the broad purpose of CERCLA was to place the cost of clean-up upon those who caused the hazardous condition. CERCLA liability exceptions are typically narrowly interpreted. However, both the President and Congress described the September 11 attacks as acts of war as did the U.S. Supreme Court in subsequent litigation.

CERCLA's purpose, the Court stated, would not be furthered by imposing liability upon the defendant airlines, and the owners and operators of the World Trade Center. Although the September 11 attacks were not carried out by a government, the traditional requirement for an act of war, they nevertheless qualify as acts of war under CERCLA.

The Court distinguished its reading of CERCLA from that of insurance contracts that narrowly interpret an act of war exclusion from liability. Insurance is designed to protect the policyholder from loss. Additionally, the federal Anti-Terrorism Act's definition of act of war is intended to distinguish an act of war from an act of terrorism, something CERCLA does not address. Consequently, the Court believed that these situations were different than CERCLA.

The adjacent building owner also sought common-law indemnification (restitution) for the clean-up. However, in order for this legal doctrine to apply, the World Trade Center defendants would have to be at fault in causing the damage. They are not at fault. Consequently, the Second Circuit found no liability under CERCLA or common-law indemnification.

Present realities do not always fit traditional legal definitions. Being adaptable and flexible in utilizing those definitions is a typical judicial response. "Act of war" typically involved military forces of a hostile government. "Act of public enemy" addressed attacks by bandits and others not directly associated with a government. Under this strict legal distinction, the terrorists attacks were not acts of war since a "government," as that word is understood, did not instigate them. However, this distinction in terms arose before modern terrorism.

There is a political and social debate about how to apply traditional law to an unanticipated contemporary world. This will continue to present both philosophical and practical concerns. Additionally, legislation cannot address every circumstance, requiring some theory of interpretation to be applied in order to resolve a present dispute. Looking at the broad purpose or intent, as this Court did, is where most decision makers begin.