A government lawyer urged a federal appeals panel Monday to find that former EPA chief Christine Todd Whitman cannot be held liable for telling residents near the World Trade Center site that the air was safe to breathe after the 2001 terrorist attacks.
Department of Justice attorney Alisa Klein said that holding Whitman liable will set a dangerous precedent in future disasters: "The consequence would be a default to silence. If you speak, you will be potentially held liable. Then the clear message for government officials is to say nothing."
Residents, students and workers in lower Manhattan and Brooklyn filed the lawsuit, saying they were exposed to hazardous dust and debris from the fallen twin towers after Sept. 11. They say Whitman should be forced to pay damages to properly clean homes, schools and businesses and be forced to create a fund for medical monitoring of victims, some of whom claim they suffer from asthma, lung disease and other ailments.
Last year, U.S. District Judge Deborah A. Batts in Manhattan refused to dismiss Whitman as a defendant, calling the actions of the former New Jersey governor "conscience-shocking."
"No reasonable person would have thought that telling thousands of people that it was safe to return to lower Manhattan, while knowing that such return could pose long-term health risks and other dire consequences, was conduct sanctioned by our laws," Batts wrote.
The 2nd U.S. Circuit Court of Appeals heard the case Monday.
The EPA's Office of the Inspector General said the agency did not have data and information to support statements made in the days after the Sept. 11 attacks that the air was safe to breathe.
The EPA's internal watchdog concluded that the agency, at the urging of White House officials, gave misleading assurances that there was no health risk from the dust in the air after the towers' collapse.
The lawyers and judges on the panel agreed that holding a member of the president's cabinet personally liable was unprecedented.
Still, Judge Jon Newman said there was a question of accountability.
"There's an important government interest in a false reassurance (to the public) _ seems to be what you are saying," he told Klein.
The appeals court declined to immediately rule.
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