On July 22nd, in a case of first impression, CTSW argued before the Southern District of New York that the tragic events of September 11th did not constitute an “act of war” as that term is used in the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”).  On behalf of a real estate client, CTSW brought suit against the airlines that crashed into the World Trade Center, and the buildings that contained asbestos and other hazardous substances that were released into the environment after their collapse, to force them to pay for the remediation of such substances (commonly known as WTC Dust) from our client’s building, which is located across the street from the WTC site.  The Environmental Protection Agency required our client to remediate the WTC Dust from the building, and CTSW initiated a CERCLA action to require the airlines and building owners to reimburse our client for these response costs.

Under CERCLA, a strict liability statute, it is a complete defense to liability if the release of the hazardous substances was caused solely by an act of war (a term not defined in the statute).  Although none of the defendants sought dismissal of the lawsuit on this ground, the Second Circuit issued a mandate to the district court to determine whether the act of war exception, considered in the context of CERCLA’s statutory scheme and the intent of Congress, applies in this case.  

The novel aspect of this case was underscored by the fact that two of the defendants took no position on the issue and one of the defendants actually argued that the events of 9/11 did not constitute an act of war for CERCLA purposes, despite the fact that a contrary finding would provide them with a complete defense to liability.  We are awaiting a decision from the District Court.