The Second Circuit U.S. Court of Appeals recently ruled that the U.S. Environmental Protection Agency (EPA) is not liable for any harm resulting from their intentional misinformation about air quality around the World Trade Center (WTC) site following the September 11 attacks. The lawsuit, Lombardi v. Whitman, was filed by five emergency responders who worked at the WTC site without adequate safeguards, in part because of the misguided assurances of safe air quality. The April 19 court decision favors protecting government liability over the public's right to know about environmental risks that could compromise their safety.

Based on an investigation into the agency's overall response to the 9/11 attacks, the EPA Inspector General released an Aug. 21, 2003, report revealing that EPA communications to the public immediately after 9/11 were misleading. Statements made by EPA did not fully represent the data the agency possessed and were strongly influenced by the White House. News releases omitted important information on risks, such as potential health effects for vulnerable populations like children and the elderly. Even though EPA did not have sufficient data and analyses to determine if the air was safe to breathe, they issued such reassuring statements anyway.

The court held that EPA's actions did not constitute a "shock to the conscience" and so could not be held responsible for harm caused by misinformation, whether deliberate or not. The "pull of competing obligations" — EPA's mandate to inform the public about environmental dangers and the apparent conflicting duty of the federal government to keep peace and order — neutralizes any claim that government action amounts to "deliberate indifference," the standard required to shock the conscience. Creating such loopholes in the standard severely undermines any attempt to hold the government responsible for publicizing flawed and arguably dangerous information. This decision also encourages the government to "spin" health and safety information in future crises.

Though Lombardi v. Whitman did not substantively address whether EPA knowingly endangered WTC emergency and clean-up workers, there is considerable evidence that such a "lesser evil" was chosen. The Environmental Law and Justice Project requested under the Freedom of Information Act (FOIA) hazardous material and water samples EPA took in the month after the WTC collapse. The more than six hundred pages received from the request reveal that EPA found unhealthy levels of toxins after three weeks, yet the agency didn't advise area residents or workers to use respiratory protection. An internal Oct. 5, 2001, EPA letter to the head of New York City's Emergency Operations Center, found through discovery in another court case, refers to potential health concerns for WTC workers from "asbestos and other contaminants…present in the air." However, none of the health concerns or information on the presence of dangerous toxins were voiced to the public. Instead, only assurances on the safety of the air quality were released.

EPA was not alone in neglecting to adequately provide safeguards for the WTC workers. In response to the EPA's Oct. 5 letter, New York City considered ongoing worker exposure monitoring but never implemented the plan since the "costs of this operation appear[ed] to outweigh the benefits." The five plaintiffs in Whitman now suffer from chronic medical conditions most likely caused by their work at WTC. They did not wear protective gear because they thought it was unnecessary expressly because of EPA's assurances and lack of any recommendation to use protection, as well as their own agencies' failure to provide any.

It is understandable that government agencies will make mistakes in the aftermath of a crisis for which they are unprepared. EPA's errors, however, were avoidable, but instead, the government chose to make political perception more important than public safety. This failure is yet another example of the current administration's penchant for suppressing scientific evidence. The Inspector General report also implicated the White House Council of Environmental Quality as having "influenced, through the collaboration process, the information EPA communicated to the public through its early press releases when it convinced EPA to add reassuring statements and delete cautionary ones."

The plaintiffs have decided not to appeal this ruling.