Appeals Court Dismisses 9/11 Suit against Former EPA Chief

The U.S. Court of Appeals for the Second Circuit ruled yesterday that former EPA Administrator Christie Todd Whitman could not be sued for making allegedly misleading reassurances to residents, office workers, and students about the air quality in New York after the terrorist attacks in 2001 (Benzman, et al. v. Whitman, et al., No. 06-1166-cv (L), 4/22). The finding reverses a lower court's 2006 ruling that denied EPA's motion to dismiss, which allowed the case to proceed against Whitman personally. Whitman argued that she was entitled to qualified immunity because her alleged conduct did not violate a constitutional right.

The Second Circuit noted that Whitman's reassuring comments about the safety around the World Trade Center site was based on "a choice between competing considerations, although not the stark choice between telling a deliberate falsehood about health risks and issuing an accurate warning about them." The initial complaint alleged that the White House Council on Environmental Quality influenced the EPA's Office of Inspector General, convincing the agency "to add reassuring statements and delete cautionary ones" to its press releases early on after the attacks. "The realistic choice for Whitman was either to accept the White House guidance and reassure the public or disregard the CEQ's views in communicating with the public," the court observed.

The court added that whether or not Whitman's resolution of such competing considerations was wise, "she has not engaged in conduct that 'shocks the conscience' in the sense necessary to create constitutional liability for damages to thousands of people under the substantive component of the Due Process Clause."

The lawsuit was brought by residents, students, and workers in lower Manhattan and Brooklyn who argued that Whitman should be forced to pay for the cleanup of homes, schools, and offices.

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