Whitman Held Immune Even If She Deliberately Lied About 9/11 Air Quality

In a remarkable opinion, the Second Circuit decided Christine Todd Whitman was immune from personal liability when, as Secretary of the Environmental Protection Agency,  she gave false assurances about the air quality in and around Ground Zero following the attacks on September 11. The court in Benzman v. Whitman, 06-1166 (2^nd Cir., April 22, 2008),  rejected the claim that Whitman could be held liable for injuries sustained by nearby residents and workers who relied on her representations that it was safe to return to or stay in the area when the EPA knew, but did not disclose, that the air around Ground Zero had dangerous levels of toxins and carcinogens.

The plaintiffs argued that Whitman’s statements were not just reflective of “deliberate indifference,” the constitutional standard addressed in prior cases, but were “intentional lies.” The court concluded: “We understand the Plaintiffs’ concern, supported in substantial part by the report of the EPA’s own Inspector General, that the agency’s performance in discharging its responsibilities in the aftermath of the 9/11 attacks, which involved an attack on America’s largest city unprecedented in our history, was flawed. But legal remedies are not always available for every instance of arguably deficient governmental performance.”

Not always for ever instance, but should be if the allegations in this case are accurate. 

Alan Milstein