By Ronda Kaysen
The activists who have been fighting the Environmental Protection Agency ever since Christine Todd Whitman told Downtown residents and workers after 9/11 that the air in their neighborhood was safe to breathe and they should come home and breathe it — despite a lack of evidence — finally had their day in court. But the victory, the first in a long line of setbacks, was bittersweet.
Last week, Judge Deborah A. Batts said Whitman, who was head of the E.P.A. at the time, used “conscience shocking” judgment when she assured people the air in Lower Manhattan was safe. The judge stripped the former New Jersey governor of her immunity in a class action lawsuit brought against her and the E.P.A. on behalf of Downtown residents and students who claim they were harmed by toxins from the dust. Batts, in ruling against the agency, singled Whitman out for a series of misleading statements she continued to make in the weeks after the attacks.
“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. “Whitman’s deliberate and misleading statements made to the press… shocks the conscience.”
Her ruling lays the groundwork for residents to sue both the E.P.A. and Whitman to force the agency to test Lower Manhattan, Brooklyn and New Jersey homes and offices, clean any remaining dust and debris, and fund a medical monitoring program.
Last week the coalition of residents, workers and elected officials celebrated a rare victory in a struggle that has been marred by repeated setbacks in the years since the incineration of the Trade Towers wreaked havoc on their neighborhood. Even in victory, the group was weary and apprehensive that anything positive might come of the recent decision.
“It is extremely frustrating, even outrageous, that we are here, once again, as a group,” said Senator Hillary Clinton, speaking at a press conference after the ruling last week. “We didn’t have a lot of tools at our disposal. Trying to persuade the White House and this administration to act in the best interests of Americans is a lonely, almost impossible task.”
The senator’s frustration was echoed by the plaintiffs on the case and other residents who have spent the last four and a half years struggling with little success to get the E.P.A. to clean Lower Manhattan.
“It’s sort of a mix of sorrow and triumph,” said Jo Polett, a plaintiff on the case. “It is a very sad thing that citizens have to sue their government to get them to do the right thing.”
Although the ruling is a vindication for residents who have described their struggle with the E.P.A. as akin to shouting into an empty barrel, it does not ensure that anything will actually happen. “It’s a positive step in the right direction but it’s a shame that we still haven’t had an adequate testing and cleanup in the last four years and we wonder if that will ever happen,” said Catherine McVay Hughes, chairperson of Community Board 1’s World Trade Center Redevelopment Committee. “We wished that this had happened earlier.”
Hughes was the community liaison to a defunct E.P.A. panel created at the request of Senator Clinton to devise a testing and cleanup plan for Lower Manhattan. Residents worry that the toxic plume of dust that spread over Lower Manhattan and parts of Brooklyn and New Jersey after the attacks has settled into the air conditioning ducts of their homes and other inaccessible places, continuing to contaminate them with each passing year.
In December, E.P.A. dismantled the panel, ignoring the advice of its own panelists, and moved forward with a testing and cleanup plan that critics described as grossly inadequate.
Last month, E.P.A. Regional Administrator Alan Steinberg told City Councilmember Alan Gerson that he would not attend a City Council hearing to question the E.P.A. about its decision, insisting in a letter, “E.P.A.’s activities related to Lower Manhattan have already been widely disclosed.”
But after Judge Batts’ ruling, Steinberg’s office reached out to Gerson and now says the administrator will meet with him in private. “I don’t know if this has to do with the ruling,” said Gerson, “But I’m assuming everything is interrelated.”
For some residents, any validation was enough to give a long and lonely struggle a much-needed boost. “I was very excited to hear that someone was looking at the truth and acknowledging that people should be held responsible,” said Diane Lapson, a plaintiff on the case and a resident at Independent Plaza North, a large apartment complex seven blocks north of the Trade Center. “I’m encouraged that somebody would finally acknowledge what we’ve been saying all along.”
Lapson, who is president of her tenants association, stayed at I.P.N. in the days after 9/11, assisting residents who could not leave. One of Lapson’s neighbors approached her. His wife was pregnant with twins and he wondered if they should move out of the neighborhood. Despite assurances from the E.P.A., Lapson advised her neighbor to move. “If you pulverize two buildings. Where is it? Where’s the building? It’s in our A.C.” Lapson, who stayed, now suffers from ongoing pulmonary complications.
Most recognize that the win will likely be short lived. “I assume they’re going to appeal it as far as they can appeal it,” said Clinton.
Whitman released a statement last week dismissing the judge’s ruling as “completely inaccurate” and said she expected the Justice Department would appeal. “I firmly believe that the agency’s findings that the air quality was safe were correct,” she said in her statement.
Charles Miller, a spokesperson for the U.S. Dept. of Justice, said the department was still reviewing the court documents.
Polett, who suffers from ongoing pulmonary complications and often speaks in a raspy voice, said she felt a twinge of pity for Whitman. “For two seconds, I felt sorry for her that she got herself in a situation that she has no recourse but to keep lying,” she said.
The day Judge Batts declared Whitman’s actions “conscience shocking,” in the same courthouse, another judge, Judge Alvin K. Hellerstein came to a very different conclusion about a similar case. A group of rescue workers and first responders also sued the E.P.A. and Whitman for misleading them about their safety at the site. Hellerstein dismissed the case in its entirety from the bench.
“It’s basically the same animal, just different plaintiffs,” Miller said in a telephone interview.
Jeanne Markey, who represents the residents in the case ruled by Batts had a very different assessment of how the two cases played out. “It’s a different scenario when someone wants to put their child back in Stuyvesant High School,” than someone who is a city workers working at a dangerous site.
[Both Hellerstein, 72, and Batts, 58, were appointed by President Clinton.]
Litigation is a slow moving beast and as months have turned into years since the attacks, residents wonder if a precious window of opportunity has been missed in the long struggle to see their homes tested and cleaned.
“This is all converging into a perfect storm,” said Clinton. “We all know the clock is ticking.”
U.S. Rep. Jerrold Nadler was more blunt. “This cover-up is an ongoing conspiracy to cause the shortening of lives of thousands of people in the city,” he said at the press conference.
Hughes, a Financial District resident, hopes that the ruling will uncover “what people knew and when they knew it.” But she spoke with an air of sadness. The E.P.A.’s response to Hurricane Katrina in the Gulf Coast has given her little hope that if another environmental disaster were to strike Lower Manhattan she could rely on the agency vested with the public’s safety. “We wanted to believe that it was safe to come back to work, safe to come back to live, and safe to bring back our neighborhood,” she said. “I doubt that much has changed in terms of environmental safety and health except that now people know that they’re on their own.”
Ronda@DowntownExpress.com
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