Ex-EPA Head Whitman Not Liable For 9/11 Air Error

By ARI PAUL

The U.S. Second Circuit Court of Appeals April 22 dismissed a lawsuit that would have held former U.S. Environmental Protection Agency Administrator Christine Todd Whitman liable for wrongly stating that the air around Ground Zero was safe to breathe after 9/11.

CHRISTINE TODD WHITMAN: Ruling spurs criticism.

While noting that she might have erred in her assessment, the court said in its decision that she was "not engaged in conduct that 'shocks the conscience.'''

'Held to Lower Standard'

"I was outraged but not that surprised, because I believe there is a very dark side to the system," said Sally Regenhard, founder of the Skyscraper Safety Campaign, following the ruling. "Apparently government bureaucrats and politicians, government officials are held to a lower standard than the average American."

Ms. Whitman, a former Governor of New Jersey, testified before the U.S. House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties last June. Many advocates for 9/11 rescue workers hold her responsible for telling responders and residents less than a week after the World Trade Center's destruction that the air was safe. Additionally, workers, although given masks while working amid the wreckage, were not issued respirators until months later.

Last summer the city Department of Health and Mental Hygiene released a study showing that 9/11 responders showed high rates of asthma, and advocates have said that the air had caused cancers, some of them terminal, in many Ground Zero workers.

"There is a mountain of evidence demonstrating that Ms. Whitman and the Bush administration misled the public about air quality in the aftermath of the collapse of the World Trade Center," said the House subcommittee Chairman, U.S. Rep. Jerrold Nadler, in a statement last week. "Perhaps most upsetting is the court's apparent justification of Ms. Whitman's lies as a 'realistic choice' among 'competing governmental considerations' due to her attempt to 'reassure the public,' even though by doing so she put the public's health in jeopardy."

Congressman Nadler continued, "The decision also noted that even if Ms. Whitman knowingly made these false statements, she would still enjoy immunity unless it could be proven that she also intended to harm the victims. If permitted to stand, this interpretation means that government officials in the future can deceive the public and harm thousands of people with impunity. That should shock everyone's conscience."

Lower Manhattan Councilman Alan Gerson said that while he understood and respected the legal basis of the decision, he still held Ms. Whitman responsible.

"To give the all-clear signal remains reprehensible," he said in a phone interview. "It was ethically, morally and as a matter of policy the wrong decision."