Airlines Prevail In The Second Circuit In Avoiding Clean Up Costs For 9-11 Attacks

220px-N334AA_B767-223ER_American_MAN_08APR01_(6839074488)220px-Boeing_767-222,_United_Airlines_AN0188143The United States Court of Appeals for the Second Circuit has handed down a major decision on responsibility for 9-11 liability. In a decision by Judge Dennis Jacobs, a panel ruled that American Airlines, United Airlines and the World Trade Center leaseholder are not liable for environmental cleanup costs for the attacks in New York City. It is not the conclusion but the rationale that raises concerns about the immunity decision. The panel ruled that none of these parties were responsible for the attacks because it constitutes an act of war. That rationale negates the obvious responsibility of not just the government in ignored numerous indicators of the attacks but the refusal of the airlines to take rudimentary security changes advocated for years such as secure cockpit doors and flight protocols. The decision is In Re September 11 Litigation, 2014 U.S. App. LEXIS 8293.

CERCLA contains a strict liability provision for hazardous waste cleanup on owners and facility operators, on certain persons who arrange for the disposal or treatment of hazardous waste, and on certain persons who transport hazardous waste. 42 U.S.C. § 9607(a)(1)-(4). The purpose is to avoid the public from the clean up costs resulting for corporate negligence. There are however three affirmative defenses in Section 107(b):

There shall be no liability under [CERCLA] for a person otherwise liable who can establish by a preponderance of the evidence that the release or threat of release of a hazardous substance and the damages resulting therefrom were caused solely by–
(1) an act of God;
(2) an act of war;
(3) an act or omission of a[n unrelated] third party . . . ; or
(4) any combination of the foregoing paragraphs.

42 U.S.C. § 9607(b) (emphasis added).

However, an “act of war” is not defined in the statute. In defense of the panel, they had a notable statement by the Supreme Court that seemed to answer the question, though some would call it dicta and not binding on lower courts. In Hamdan v. Rumsfeld, 548 U.S. 557, 599 (2006), that Court ruled:

[N]othing in our analysis turns on the admitted absence of either a formal declaration of war or a declaration of martial law. Our focus instead is on the September 11, 2001, attacks that the Government characterizes as the relevant ‘act[s] of war,’ and on the measure that authorized the President’s deployment of military force–the AUMF. . . . [W]e do not question the Government’s position that the war commenced with the events of September 11, 2001 . . . .

Yet, the Court does not treat this as determinative alone and proceeds to examine other grounds for the decision. It then gives cursory treatment to the main argument under International Law in footnote 4 by simply saying:

We recognize that in the international law context, “war” has been traditionally defined “as a ‘use of force or other action by one state against another’ which ‘[t]he state acted against recognizes . . . as an act of war, either by use of retaliatory force or a declaration of war.’” Shell Oil, 294 F.3d at 1061 (quoting two international law treatises).

At based, the decision merely gives sweeping deference to the political characterization of the attack as an act of war by the two other branches. The panel notes:

the September 11 attacks were different in means, scale, and loss from any other terrorist attack. Both coordinate branches of government expressly recognized the September 11 attacks as an act of war justifying military response, and these decisions are worthy of deference. Congress, in the immediate aftermath of 9/11, passed the Authorization for the Use of Military Force (“AUMF”), Pub. L. No. 107-40, 115 Stat. 224 (2001), which “constitute[d] the specific statutory authorization” necessary for the President to enter military hostilities abroad under the War Powers Act, 50 U.S.C. §§ 1541-1548, and “to use all necessary and proper force” against those responsible for the September 11 attacks. Similarly, the President declared that the September 11 attacks were acts of war and treated them as such. See Address Before a Joint Session of the Congress on the United States Response to the Terrorist Attacks of September 11, 37 Weekly Comp. Pres. Doc. 1347, 1347 (Sept. 20, 2011) (“On September 11th, enemies of freedom committed an act of war against our country.”).

Clearly the Executive Branch has a powerful interest in defining such acts as war as opposed to crime. The Congress (both Democrats and Republicans) was virtually passive in passing anything demanded during this period from the Patriot Act to the AUMF. It falls to the courts to impose a dispassionate and independent judgment of what constitutes a war and what constitutes a crime. The analysis may turn out the same way but it behooves a court to do more than defer on such a key constitutional term.

Then there is the absence of any discussion of the failures of the airlines in preventing these attacks with simple security precautions long demanded by pilots and experts. Instead, the panel says that “persons who bear no responsibility for the release of
12 harmful substances” and

The attacks 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.

But who allowed the attackers to “wrest . . . all control over the planes” in the first place? The terrorists went through porous security gates that were long underfunded and entered planes that did not have the reinforced doors or simple protocols advocated by pilots. Those failures (like the failures of the FBI and CIA contained in various studies) have been buried from public discussion. In a normal case involving crime, a party is allowed to present evidence and a court will rule (without deference) on the question of whether the defendants were warned and failed to stop a crime at a workplace or public event. Once again, this may not change the result but the lack of such substantive review in any decision to date is remarkable.

This is a well-written decision to be sure and there is a good faith basis for the ruling. However, even when cycling the issue through CERCLA, we find ourselves once again at this threshold question on how to characterize the attacks. The Court’s ruling in Hamden was in a very different context but, like the characterization by the Bush Administration, it has produced later ramifications in areas like CERCLA.

I do believe that the airlines (and certainly the government) bear responsibility for the failure to stop these attacks. This does not belittle the attack or excuse the attackers, obviously. The attacks were monstrous and those responsible were murderous fanatics. It is also not some abstraction for me. I knew one of the people killed on the plane that hit the Pentagon and the explosion occurred in my rearview mirror after I had just passed the Pentagon. In the law however we struggle to properly classify events. From the outset, powerful political forces came to bear on the treatment of these attacks as not a crime but an act of war. It was denounced as virtually unpatriotic not to call the attacks an act of war. Of course, the punishment would likely be the same for those responsible. The difference is a matter of presidential power — largely unchecked by constitutional or political limitations.

I recommend reading the opinion which has many strong sections. It is the deference given the initial classification of the attacks however that I find the most interesting.

Click here for the opinion


18 thoughts on “Airlines Prevail In The Second Circuit In Avoiding Clean Up Costs For 9-11 Attacks”

  1. Judge William Young, in sentencing the shoe bomber, “So war talk is way out of line in this court. You’re a big fellow. But you’re not that big. You’re no warrior. I know warriors. You are a terrorist. A species of criminal guilty of multiple attempted murders.”

    In defining 9/11 as an act of war we elevate and dignify criminals as warriors. We insult the men and women who have risked and lost their lives on the field of battle in defense of this nation. They are warroors. The 9/11 perpetrators were not warriors, they ware not waging war, they were criminals, engaged simply in multiple acts of murder.

  2. Two of the flights were not scheduled to fly on 9/11, and at least two, or maybe all four planes were NOT deregistered until 2005 — meaning, they continued to fly scheduled flights for FOUR years after the self-attacks of 2001.

    Videos – which is what the public saw on TV that they thought were videos of planes crashing into the twin towers and passing thru them as though they were made of I Can’t Believe Ir’s Not Butter…were pre-recorded. Remember the video clip of the BBC newscaster announcing that BLDG. 7 had collapsed — even as the camera showed the building standing tall, holding all those vital evidence records that had to be destroyed.

    With so much proof that 9/11 was a false flag operation, it’s amazing that the Mighty Wurlitzer’s propaganda STILL has most of the domestic public still clings to the Official Fairy Tale.

    The information is out there in boatloads, with lots of colorful videos to aid in your understanding of how it all went down.

  3. Acts of war have long been an insurance, get out of jail free card. I wonder if the Branch Davidian compound was insured and if it was, did the insurance co. try to get out of the damage claim because it was an act of war?

  4. randyjet – am with you on the airlines lack of responsibility, not on Bush’s responsibility. Clinton had several opportunities with Bin Laden and blew it. I give new administrations leeway ramping up to speed when they are first coming into office. I give Obama a pass on most of the stupid foreign policy stuff he did or did not do his first year. After that, you own it.

  5. Let’s just ‘Nuke’ Mecca, and leave the mess for them to clean up!

  6. Bin Laden did it, Iraq did it, Saudi Arabia did it, cavemen in Afghanistan did it.

    It must have been a conspiracy then.

  7. You can’t be responsible for intervening acts of third parties which were unforeseeable. This suit should be treated like a malicious prosecution.

  8. The people who had the information in front of them the summer of 2001 and decided to do nothing about it are the actual liable parties. Their continued freedom makes chumps of all Americans.

    They could have shared that information with American Airlines, and others. They were too busy the dividing oil profits.

  9. I disagree with this post. The attack on the twin towers was an act of war. Bin Laden and Al Queda had annnounced some years earlier that they were at war with the United States, and there had been previous hostilities on both sides dating back to the Clinton-era Tomahawk missile attacks on training bases in Afganistan. The fact that the US government did not overtly acknowledge this conflict until after the Trade Center attack should make no difference. The US government failures to take measures to guard against the Trade Center attacks were not all that different than the military failures by the Navy at Pearl Harbor and by McAurthur in the Phillipines (lining up all the B-17s in a tightly packed formation on the ground, which allowed the Japanese to destroy them in a single bombing raid). Responsibility for government and military failures in war is, for better or worse, not the province of civil law courts.

    The term “terrorist” has been grossly abused, much to the detriment of civil liberties in the US. This is nothing new, however. Every government labels its enemies as terrorists whether or not those enemies actually carry out violent attacks against civilian populations. I have always thought that characterizing the war on Al Queda as a “war on terror” was a major strategic error by the US government in its international efforts as well as the cause for much abuse of civil liberties here at home.

    I agree that hardening the cockpit doors was the obvious step to defend against hijackers intent on taking over the plane to use it as a kamikazi. However, prior to this event, the two typical types of attacks on airliners were bombs intended to bring down the plane and kill the passengers and political or asylum hijackers, who hoped to survive the incident. Hardening the cockpit doors is no defense against a bomb and might not be a defence against a hijacker who was willing to hold flight attendants and passangers hostage as leverage to divert the plane to another destination. In the latter case, everyone expected to survive, and did not take personal risks to stop the hijacking. Now, after the twin towers attack, starting almpost immediately with Flight 93, airline crew and passengers expect that the planned outcome of an airline hijacking will be their death and the death of others, and are conditioned to take risks to overwhelm the hijackers. The analysis has changed.

    I don’t know whether war risk insurance is available to airlines, or if so, what is covered. Ships have long had access to and regularly obtain war risk insurance, though I believe that it only covers the ships and their cargos.

  10. Prof Turley, As you know, I was an airline captain at the time of 9/11 and the airlines can in no way be considered responsible for anything about 9/11 since we followed ALL the rules to the letter and beyond. I can understand your confusion since you do not know the procedures in place at the time as to how we were instructed how to deal with hijackings. The prime rule at the time was to give the hijackers ANYTHING they wanted and to not resist in any way. This was approved by the FAA, the FBI and we were bound by that.

    The cockpit doors are entirely irrelevant since they did not have to break into the cockpit. They were INVITED in by the crew! The airlines were not at fault for the box cutters since they were brought on board LEGALLY since they had short blades and were not banned.

    Bush bears prime responsibility for not preventing 9/11 since he got the PBR titled Bin Laden determined to attack the US. Had he done his job, the attacks may not have been successful. I did not expect Bush to personally figure out what to do, but I DID expect him to do his job and distribute that report to the heads of relevant agencies and ask them to review what measures should be taken to prevent a terrorist attack. Instead he simply blew it off, and thus is guilty of gross dereliction of duty.

    We now know from the cockpit voice recorders from UA 93, that they had gotten an ACARS message from their company dispatcher. The message was to not let anybody into the cockpit, and they were discussing what the hell that meant when the terrorists struck. It is even worse, since the FAA should have had enough snap to broadcast to all aircraft to not let any person into the cockpit and to defend it at all costs. Hell, controllers give us weather alerts all the time, and I think that this would have rated higher on any scale of priorities than weather. Unfortunately the FAA did not have enough snap to figure that one out. it gets even worse, since no attempt was made to get in touch with the passengers on UA 93. The old style cockpit doors all had a kick out panel at the bottom so that fire crews could get easy access in the event of a crash or fire. Had the passengers been informed of this quick access trick, they would not have had to waste precious time battering down the door.

    That 9/11 was an act of war there con be no doubt about that because of the UN and US resolutions and we did attack the nation that sponsored and sheltered Bin Laden. simple

  11. Terrorism has created a paradigm shift. They act in the name of Allah, not any country. War has always been defined as the ultimate conflict between nations. Geneva has rules of war, which are becoming archaic. Whenever there is a paradigm shift the people in power try and fit the square peg into the round hole. Status quo is the comfort food of cultures. The status quo no longer applies. We have a duopoly mentality. Dem or Rep, crime or war. One must adapt or perish. Change must occur and we must create a different framework in dealing w/ this new evil. But, the forces for the status quo are strong and persistent. Change is difficult and uncomfortable. We seem to now be @ the kicking and screaming stage like a 2 year old saying, “NO, NO, NO!” We need strong parents to get us to change our behavior. I see none.

  12. So this: “…the September 11 attacks were different in means, scale, and loss from any other terrorist attack…” seems to indicate that only non-white terrorism can be considered. The fact that Oklahoma occurred but only two whites were involved, at least in carrying out the attack, is literally reasoned away as “terrorism.” Interesting show of political inclination by the panel. How big does he loss of life have to be for these people?

  13. i am reading this whole article. The FAA was lax in allowing Atta and his boys to get thru Portland, ME airport security with the proverbial box cutters. If anyone is to blame it most likely should be the FAA. The airlines ignored the pilots purely for economic reasons … The airlines would have had to retrofit the cockpits with much stronger doors. That makes them liable, especially in light of the fact that they had to do it post 9/11 anyway. “WHAT IF” the airlines had acceded to the pilots wishes …? We might still have two towers standing in lower Manhattan and we might not have 6-10 thousand US service personnel dead and many, many more injured as well as the 3K civilians lost at the three sites.

    i just watched the horrific tornadoes in the Southeast that killed at least 35 I believe. They interviewed a woman who said her insurance would not cover her losses because it was an Act of God.

    Both of these cases smack of a Congress gotten to by the 11,000 snakes errrr sorry lobbyists working in DC trying to protect the bottom line of their various clients.

    Regardless, of how well reasoned the decision is rendered, there are damages here and those that failed in the scope of their duties — FAA — lax security and airlines — lack of proper doors — should be held accountable.

  14. Corporations are responsible for nothing. Humans non CEO non billionaire humans have to take responsibility for everything.

    One law for them and one for us.

  15. Another catastrophe caused a similar, and possibly more bizarre, ruling:

    It was a case against big petroleum for being part of the cause of global warming thereby increasing the severity of Hurricane Katrina.

    The three judge panel originally hearing the case reversed the district court which had ruled in favor of the oil companies.

    The oil companies asked for a full en banc hearing which was granted.

    Then one of the 9 judges who were to hear the case recused herself unexpectedly.

    The court has now made a very, very strange decision deciding it has no quorum so it dismissed the appeal, in effect reversing the three judge panel even though it said it had no quorum.


    Two judges wrote dissenting opinions.

    (Comer v Murphy Oil, 5th Circuit). It is a psychological mystery why it should be so that the greater the catastrophe at issue, the more difficulty there is with adjudicating the facts and law in our jurisdictions.

    The perpetrators of 911 were never properly fingered, according to Senators who were well versed in the details, having chaired Senate Investigative Committees looking into that issue.

    This has been in the main stream news that several officials in the Saudi Arabia ruling elite financed the bulk of the 911 hijackers (e.g. Hardball and Morning Joe).

Comments are closed.