Second Circuit Holds That CERCLA’s “Act of War” Defense Shields Owners and Tenants from Cleanup Liability for Dust Created By Towers’ Destruction on 9/11

In the first decision of its kind, the Second Circuit on May 2, held that the September 11, 2001, attacks on the World Trade Center were “acts of war” for purposes of the affirmative defense for such acts contained in the onerous liability provision of the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Accepting the arguments raised by Gibbons and other firms representing the owners and tenants of the buildings (and the airlines whose planes were hijacked), the Court found that even though they were not committed by uniformed military forces of a nation-state, the attacks were nevertheless acts of war for CERCLA purposes (though not necessarily in other legal contexts) because they (1) were “indistinguishable from military attack in purpose, scale, means, and effect,” (2) were recognized as acts of war by both the President and Congress, and (3) “wrested from the defendants all control over the planes and the buildings, obviated any precautions or prudent measures defendants might have taken to prevent contamination, and located sole responsibility for the event and the environmental consequences on fanatics whose acts the defendants were not bound by CERCLA to anticipate or prevent.”