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Benzman v. Whitman

ELR Citation: 38 ELR 20096
Nos. Nos. 06-1166 et al., (2d Cir., 04/22/2008) remanded

The Second Circuit remanded with directions to dismiss claims against the U.S. Environmental Protection Agency (EPA) and a former Agency administrator for misleading plaintiffs into believing that the air quality in lower Manhattan in the aftermath of September 11, 2001, was safe enough to permit them to return to their homes, schools, and offices. Plaintiffs sought to hold the former EPA Administrator personally liable for a denial of substantive due process. But plaintiffs failed to show that she engaged in conduct that “shocks the conscience” in the sense necessary to create constitutional liability for damages to thousands of people under the substantive component of the Due Process Clause. The court understood plaintiffs' concern, supported in substantial part by the report of EPA’s own Inspector General, that the Agency's performance in discharging its responsibilities in the aftermath of the terrorist attacks was flawed. But legal remedies are not always available for every instance of arguably deficient governmental performance. The court also ordered dismissal of the plaintiffs' Administrative Procedure Act and Comprehensive Environmental Response, Compensation, and Liability Act claims.

[A prior decision in this litigation can be found at 36 ELR 20036.]