CERCLA’s Act Of War Defense — Potential Collateral Damage

For the first time in CERCLA's history, a court has concluded that a Superfund claim was barred by the "act of war" defense.  In that case, In Re September 11 Litigation, the judge ruled that a property owner a block from Ground Zero could not recover the costs of cleaning up dust on his building from the collapse of the World Trade Center towers because the dust resulted from an act of war.   The judge had originally dismissed the case on statute of limitations grounds and the absence of a "release" within the meaning of CERCLA, but the Second Circuit remanded the matter for a determination whether the act of war defense would apply (why the Second Circuit focused on the act of war defense rather than the "third party" defense in Section 107(b)(3) is unclear).