10-4197-cv In re September 11 Litigation
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 23rd day of May, two thousand twelve. 5 6 PRESENT: DENNIS JACOBS, 7 Chief Judge, 8 JOSÉ A. CABRANES, 9 DEBRA ANN LIVINGSTON, 10 Circuit Judges. 11 12 - - - - - - - - - - - - - - - - - - - -X 13 14 IN RE SEPTEMBER 11 LITIGATION: 15 16 Cedar & Washington Associates, LLC, 17 Plaintiff-Appellant, 18 19 -v.- 10-4197-CV 20 21 The Port Authority of New York and New 22 Jersey, Silverstein Properties, Inc., 23 World Trade Center Properties LLC, 24 Silverstein WTC Management Co. LLC, 1 25 World Trade Center LLC, 2 World Trade 26 Center LLC, 3 World Trade Center LLC, 4 27 World Trade Center LLC, 7 World Trade 28 Company, L.P., HMH WTC, Inc., Host
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1 Hotels and Resorts, Inc., Westfield WTC 2 LLC, Westfield Corporation, Inc., 3 Consolidated Edison Company of New 4 York, AMR Corporation, American 5 Airlines, Inc., UAL Corporation, and 6 United Airlines, Inc. 7 Defendants-Appellees. 8 - - - - - - - - - - - - - - - - - - - - 9 10 FOR APPELLANT: SARI E. KOLATCH (Jay B. Spievack, 11 Kara Gorycki, Cohen Tauber 12 Spievack & Wagner P.C., New 13 York, N.Y., Robert D. Fox, Neil 14 Witkes, Manko, Gold, Katcher & 15 Fox LLP, Bala Cynwyd, PA, on the 16 brief), Cohen Tauber Spievack & 17 Wagner P.C., New York, N.Y. 18 19 FOR APPELLEES: LEAH W. SEARS (Beth D. Jacob, 20 Judith S. Roth, on the brief), 21 Schiff Hardin LLP, New York, 22 N.Y., for appellee The Port 23 Authority of New York and New 24 Jersey. 25 26 Richard Williamson, Thomas A. 27 Egan, Flemming Zulack Williamson 28 Zauderer LLP, New York, N.Y., 29 for appellees Silverstein 30 Properties, Inc., et al. 31 32 Christopher Walsh, Paul M. 33 Hauge, Gibbons P.C., Newark, 34 N.J., for appellees Host Hotels 35 and Resorts, Inc. & HMH WTC, 36 LLC. 37 38 PETER L. WINIK, Latham & Watkins 39 LLP, Washington, D.C., for 40 appellees Westfield WTC LLC & 41 Westfield Corp., Inc. 42 43 Charles F. Rysavy, Dawn M. 44 Monsen, K&L Gates LLP, Newark, 45 N.J., for appellee Consolidated 46 Edison Co. of New York, Inc.
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1 MAURA K. MONAGHAN (Roger E. 2 Podesta, Debevoise & Plimpton, 3 New York, N.Y., Desmond T. 4 Barry, Jr., Condon & Forsyth 5 LLP, New York, N.Y.), Debevoise 6 & Plimpton, New York, N.Y., for 7 appellees American Airlines, 8 Inc. & AMR Corp. 9 10 Jeffrey J. Ellis, Quirk and 11 Bakalor, P.C., New York, N.Y., 12 Michael R. Feagley, Mayer Brown, 13 LLP, Chicago, Ill., for 14 appellees United Air Lines, Inc. 15 & United Continental Holdings, 16 Inc. 17 18 Appeal from a judgment of the United States District 19 Court for the Southern District of New York (Hellerstein, 20 J.). 21 22 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 23 AND DECREED that the judgment of the district court be 24 REMANDED. 25 26 Plaintiff Cedar & Washington Associates, LLC appeals 27 from a judgment of the United States District Court for the 28 Southern District of New York (Hellerstein, J.), dismissing 29 its complaint. Cedar & Washington sought recovery of 30 abatement costs incurred after its building in lower 31 Manhattan was infiltrated by hazardous substances produced 32 by the terrorist attacks at the World Trade Center on 33 September 11, 2001. 34 35 Sometime after September 11, 2001, Cedar & Washington 36 undertook to renovate its 12-story office building into a 37 19-story business hotel. It was notified by the New York 38 State Department of Environmental Conservation and the 39 United States Environmental Protection Agency of the 40 possibility that the interstitial spaces of its building 41 might contain so-called “WTC Dust,” which according to the 42 complaint is composed of finely ground substances from the 43 destruction of the World Trade Center, including concrete, 44 asbestos, silicon, fiberglass, benzene, lead, and mercury. 45 To continue renovations, the governmental agencies required 46 Cedar & Washington to remediate the WTC Dust through costly 47 cleanup measures. In this suit, Cedar & Washington seeks to
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1 recover those costs from defendants, which include the owner 2 of the World Trade Center site, lessees of World Trade 3 Center buildings, and the companies that owned and operated 4 the two aircraft that were crashed into the Twin Towers. 5 6 The claims are premised on the Comprehensive 7 Environmental Response, Compensation, and Liability Act 8 (“CERCLA”), 42 U.S.C. §§ 9601-9675, and common-law 9 indemnification. The district court dismissed the claims on 10 two alternative grounds: (1) construction of scaffolding by 11 the Federal Emergency Management Agency (“FEMA”) in the 12 immediate aftermath of September 11 was “initiation of 13 physical on-site construction of the remedial action” for 14 the purpose of CERCLA’s statute of limitation, see 42 U.S.C. 15 § 9613(g)(2)(B), and Cedar & Washington’s 2008 lawsuit was 16 therefore untimely; and (2) Cedar & Washington failed to 17 allege either a “release” or a “disposal” of hazardous 18 substances necessary to pursue a claim for cost recovery 19 under CERCLA § 107(a)(1) and (a)(2). 42 U.S.C. § 9607(a)(1) 20 & (a)(2). Following dismissal of the CERCLA claim, the 21 district court dismissed the indemnification claim as 22 “academic.” In addition to the grounds upon which they 23 prevailed, defendants made a number of other arguments as to 24 why the lawsuit should be dismissed at the pleading stage. 25 They have renewed many of those arguments on appeal. 26 27 The 96th Congress passed CERCLA “in response to the 28 serious environmental and health risks posed by industrial 29 pollution” and “to promote the ‘timely cleanup of hazardous 30 waste sites.’” Burlington N. & Santa Fe Ry. Co. v. United 31 States, 556 U.S. 599, 602 (2009) (quoting Consol. Edison Co. 32 of N.Y. v. UGI Util., Inc., 423 F.3d 90, 94 (2d Cir. 2005)). 33 Cedar & Washington’s CERCLA claims invite the application of 34 CERCLA to a unique and unforeseen factual circumstance. 35 Their resolution may involve thorny questions of statutory 36 interpretation. We are reluctant to resolve such questions 37 absent consideration of a threshold question: whether the 38 attack on the World Trade Center on September 11 was an “act 39 of war” within the meaning of CERCLA’s affirmative defense. 40 41 CERCLA Section 107(b) provides an affirmative defense 42 in any situation where the “release or threat of release of 43 a hazardous substance” was “caused solely by . . . (2) an 44 act of war.” 42 U.S.C. § 9607(b). The district court was 45 not presented with an opportunity to consider the issue, 46 although all defendants asserted or adopted the affirmative 47 defense in their answers to the complaint. We therefore
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1 issue the mandate to the district court for the limited 2 purpose of allowing it to decide in the first instance 3 whether the act-of-war exception in CERCLA, considered in 4 the context of CERCLA’s statutory scheme and the intent of 5 Congress, applies in this case. But we will retain 6 jurisdiction over the case. 7 8 9 For the foregoing reasons, following the procedures set 10 forth in United States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 11 1994), a mandate shall issue forthwith remanding this cause 12 to the district court, where it shall permit liberal 13 repleading of the act-of-war defense, solicit briefing from 14 the parties in an expeditious manner, and render a decision 15 within 75 days of the date of this order. After the 16 district court’s decision, any party to this appeal may 17 restore jurisdiction to this court within 30 days by letter 18 to the Clerk’s Office seeking review, without need for a new 19 notice of appeal. The Clerk’s Office will then set an 20 expedited briefing schedule and refer the appeal to this 21 panel. 22 23 24 FOR THE COURT: 25 CATHERINE O’HAGAN WOLFE, CLERK