It was no surprise that the Second Circuit in In re September 11 Litigation recently affirmed the lower court’s ruling that contamination caused by the 9/11 attacks was within CERCLA’s “Act of War” defense. Although CERCLA is often said to impose strict liability regardless of fault, the Second Circuit’s decision indicates that CERCLA’s liability scheme was not intended to reach contamination that was caused entirely by the hostile acts of others:
The attacks wrested from the defendants all control over the planes and the buildings, obviated any precautions or prudent measures defendants might have taken to prevent contamination, and located sole responsibility for the event and the environmental consequences on fanatics whose acts the defendants were not bound by CERCLA to anticipate or prevent.
This rationale for the the Act of War defense would seem to apply with equal force to CERCLA’s two other defenses — an Act of God and Third Party acts. In the end, all three of CERCLA’s statutory liability defenses turn on the same simple principle — where the contamination was not caused in any way by the PRP’s acts or omissions, CERCLA liability will not attach. In other words, if there really was nothing the PRP could do to prevent the release of hazardous substances, there will be no CERCLA liability.