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Oral arguments in Benzman v. Whitman, EPA 12/10

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PostPosted: Tue Dec 04, 2007 2:15 pm    Post subject: Oral arguments in Benzman v. Whitman, EPA 12/10
From Tue Dec 04, 2007 3:00 am to Mon Dec 10, 2007 2:59 am (included)
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9/11 EA News&Alerts, December 3, 2007


Attorney Joel Kupferman of the NY Environmental Law and Justice Project, who serves as Co-counsel in the lawsuit that Lower Manhattan residents, students and office workers have brought against Christine Todd Whitman and the EPA (Benzman v. Whitman) is encouraging us to attend this critical hearing in the Court of Appeals.

Below, we provide the time/place/date details, followed by a message from Joel Kupferman, explaining the import of the December 10 court hearing.

What: Oral arguments in Benzman v. Whitman, EPA before the US
Court of Appeals Second Circuit

When: December 10, 2007 at 10 AM

Where: U.S. Court of Appeals for the Second Circuit
Daniel Patrick Moynihan U.S. Courthouse
500 Pearl Street (near Foley Square)
Tel: (212)857-8500



NYELJP NEWS UPDATE: COURT OF APPEALS FOR THE Second Circuit to Hear Oral Arguments in Benzman v. Whitman on December 10, 2007, AT 10 a.m.

On December 10, 2007, a panel of Second Circuit judges will hear oral arguments on all issues being appealed in Benzman v. Whitman. The law office of Berger & Montague (Philadelphia, PA), with the New York Environmental Law & Justice Project (New York, NY) as co-counsel, represents the plaintiffs in this action against the Environmental Protection Agency (EPA) and former EPA Administrator Christine Whitman, for falsely telling residents, students, workers and others that they could return to their homes, jobs, and schools in Lower Manhattan or Brooklyn in the days immediately following 9/11, before there was adequate data to prove that it was safe to return. Unfortunately, it was not safe, and plaintiffs who returned to the area were exposed to contaminated air and dust from the collapse of the Twin Towers.

Last February, Judge Deborah Batts denied in part and granted in part the governments motion to dismiss the lawsuit. Judge Batts denied Whitmans qualified immunity defense, finding that Whitman could be held personally liable for making deliberate and misleading statements to the press when she reassured the public that it was safe to return. However, Judge Batts ruled that the plaintiffs could not sue the EPA for failing to properly decontaminate downtown residences as required by the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), because the EPA was the regulating agency and could not regulate its own actions. Both parties appealed through a procedural mechanism known as interlocutory appeal, a reexamination of certain issues before trial is commenced or a final decision on the merits of the case is made by the District Court. The Second Circuit accepted the interlocutory appeal in June 2006.

There are two primary issues being reexamined on this appeal. The first is whether former Administrator Whitmans position as a government official shielded her from liability (qualified immunity). The second is whether the EPAs inadequate cleanup gave rise to a right to sue under the citizen suit. Plaintiffs' claims under CERCLA citizen suit provision 42 U.S.C. 9659(a)(1) should be upheld since the suit has been brought against EPA in its capacity as a regulated party engaged in the actual removal of hazardous substances, and not in its capacity as CERCLAs administrator implementing or enforcing CERCLA.

The Second Circuit has set December 10, 2007 at 10:00 a.m. as the date and time for oral argument to be heard by a panel of Second Circuit judges. The panel will not give its ruling at the oral argument, but rather will issue a written opinion several weeks/months thereafter. The oral argument is open to the public, and all those interested are encouraged to attend.

U.S. Court of Appeals for the Second Circuit

Daniel Patrick Moynihan U.S. Courthouse

500 Pearl Street (near Foley Square)

New York, NY 10007 Tel: (212)857-8500


9/11 ENVIRONMENTAL ACTION is a community-based organization of residents, parents and occupational safety, public and environmental health advocates, formed in April 2002 to end the federal Environmental Protection Agency cover-up, fight for a comprehensive clean-up, and demand medical monitoring and health care for everyone harmed by WTC contamination.
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