from newsday: An appeals court ruling could spell trouble for New Yorkers suing the Environmental Protection Agency and its former chief for saying that sooty lower Manhattan air was safe to breathe after the Sept. 11 terror attacks.
A three-judge panel of the 2nd U.S. Circuit Court of Appeals has declared that then-EPA Administrator Christine Todd Whitman and other agency officials can’t be held constitutionally liable for making rosy declarations about air quality in the days following the World Trade Center’s destruction.
The opinion, written by the court’s chief judge, Dennis Jacobs, said opening EPA workers up to lawsuits for giving out bad information during a crisis could have a catastrophic side effect. (ed: like accountability?)
“Officials might default to silence in the face of the public’s urgent need for information,” Jacobs wrote.
The ruling, filed Thursday, applied only to a suit brought by five government employees who did rescue and cleanup work at Ground Zero, but it contained language suggesting that similar legal claims could face trouble.
It specifically mentioned a class action lawsuit brought by Manhattan residents who claim Whitman jeopardized their health by declaring that “the air is safe to breathe” at a time when, according to the EPA inspector general, a quarter of dust samples were recording unhealthy asbestos levels.
Last year, U.S. District Judge Deborah A. Batts, refused to dismiss that case, calling Whitman’s statements “conscience-shocking.” That decision is now on appeal and has yet to be argued before the 2nd Circuit, but Jacobs indicated a reversal might be imminent, saying outright that the panel disagreed with Batts’ reasoning.
Those developments brought a blunt assessment from attorney Stephen J. Riegel, who represented the national guardsman, deputy U.S. Marshal and three city emergency medical service workers who were the subject of Thursday’s ruling.