When hijackers flew two airplanes into the twin towers of the World Trade Center on Sept. 11, 2001, they set off massive blazes and ultimately caused the buildings to collapse. Although many people were able to escape the disaster, nearly 3,000 weren't so fortunate. The fires beneath the rubble burned for three months and smoldered for another.

Firefighters and police officers immediately dug frantically amid the burning and smoldering fires through piles of rubble in a desperate effort to rescue those who were trapped and later to locate the remains of the victims. They were joined by demolition and sanitation workers and volunteers of all types. In the first days after the attack, the paramount goal was rescuing survivors. However, as the days passed, hope dimmed, and on Sept. 29, 2001, the operation officially shifted from a search for survivors to demolition of the ruined structure and cleanup of the debris. This cleanup effort continued for about eight more months.

Cleanup consisted of breaking down huge blocks of steel and concrete and carting them away to designated piers, where they were removed by barge to the reopened New York City Fresh Kills Landfill in Staten Island. There, more sanitation workers, police officers and others again sifted through the rubble, seeking to locate human remains and preserve evidence.

Interestingly enough, rescue workers weren't the only ones to respond promptly. The U.S. Congress acted with remarkable speed to address the potential financial crisis facing the airline industry and the City of New York as a result of these events. Ten days after the attacks, President George W. Bush signed into law the Air Transportation Safety and System Stabilization Act of 2001, which created the “Sept. 11th Victim Compensation Fund of 2001” to award compensation to claimants. To file a claim under the act, claimants must waive their right to file any other civil action in any federal or state court, with only limited exceptions.

Approximately 1,200 police officers, firefighters, sanitation workers, and demolition and cleanup workers elected not to file claims under the fund, but instead filed lawsuits in the New York Supreme Court against the City of New York and the Port Authority. They alleged that they suffered injuries by breathing the air fouled by toxins and contaminants from the fires and dust without proper respiratory masks and protective equipment; they said that this failure to provide safety gear violated certain labor laws. New York has regulated the workplace to ensure safe working conditions for employees through numerous provisions of its labor laws for nearly 100 years. Some of the plaintiffs worked at the World Trade Center site; others worked at transfer sites, on barges that transported the debris or at the Fresh Kills landfill. Some alleged that they began work on Sept. 11 or soon thereafter and continued to work at the site. Others alleged that they began working on later dates. Some ceased to work relatively early, and some did not leave until the cleanup ended.

Because the act provides that all suits “for damages arising out of the hijacking and subsequent crashes” are federal causes of action, and that all claims “resulting from or relating to” those crashes are to be brought exclusively in the U.S. District Court for the Southern District of New York, the cases were subsequently removed to federal court on the basis that the act preempted state law. Many of the plaintiffs objected to this change of forum, and moved to have their cases returned to the state court. Consequently, in the case of In re World Trade Center Disaster Site Litigation, U.S. District Court for the Southern District of New York, No. 21 MC 100 (AKH) (2003), the federal court was called on to determine which cases, if any, should be remanded.

The court had to determine the scope of the preemption created by the act. Was it the intention of the act to extend to lawsuits brought by cleanup and demolition workers who worked at the World Trade Center site for months after Sept. 11, 2001? Should preemption extend to claims by Department of Sanitation workers at the Fresh Kills dump site or on the piers and barges that were used to transport the debris to Fresh Kills? The court considered whether there was some limitation of time or geography dividing the claims between those more immediately and those more distantly affected by the terrorist-related aircraft crashes. In other words, the court had to decide what damages were to be considered as “arising out of,” “resulting from” or “relating to” the attacks.

The court began by reviewing the major congressional purposes for creating the Air Transportation Safety and System Stabilization Act. The legislators desired to protect the airlines and other defendants against the potential of extraordinary liability arising from the aircraft crashes, while at the same time preserving the rights of victims to claim compensation, either from the Victim Compensation Fund or through the normal course of litigation. The court also noted that an additional purpose of the act was to promote judicial efficiency, to provide some sense to the litigation by consolidating all civil litigation in one court, to facilitate judicial economy and consistency of rulings, and to bring about prompt and economical determinations of the merits.

Those parties wishing to keep the cases in federal court argued that everything the claimants did, whether at the World Trade Center site, at Fresh Kills, on the barges or on the piers, was the result of the aircraft crashes. The court, however, concluded that this reading was too broad. It held that ignoring the variables of the location of the work, the time period of the work and the nature of the tasks was inappropriate.

The court noted that in the immediate aftermath of the crashes there was a frantic effort to locate survivors. Tragically, very few people were rescued, none after Sept. 12, 2001. Five days after the attacks, Mayor Rudolph Giuliani acknowledged that the recovery effort was continuing and hoped that some lives still might be saved, but the reality was that no one had been found alive for several days. By Sept. 29, 2001, the rescue task officially ended and the workers' efforts were shifted to demolition of the ruined structures, removal of thousands of tons of debris, and cleanup of the site, lasting through May 2002.

In the beginning, the urgent search for survivors overshadowed all else. Gradually, a sense of order developed, demolition and cleanup ensued in the ways such tasks are performed, businesses in the area resumed to function, and people returned to their apartment residences.

The court concluded that these differences affected the nature of the claims and the court's jurisdiction. The court also observed that the doctrine of federal preemption does not intend to supplant state law. There is a jurisdictional boundary where the federal interest wanes and strong state interests reemerge. The court held that Congress could not have intended for every claim, no matter how distant from the attacks, to be brought into federal court, displacing strong and historic state interests and the traditional role of the state judiciary.

The court went on to note that historically, the regulation of the workplace is a state function, a part of traditional state police powers. New York's labor law, pursuant to which the plaintiffs brought their suits, began in 1909. States have a vital interest in ensuring the health and safety of employees in the workplace and possess extended experience in enacting, interpreting and applying those laws. Federal preemption of such a strong and longstanding state policy should require clear congressional intent. Nor should a federal court oust the court having expertise interpreting the statute — here, the New York Supreme Court — without a more definite statement of congressional intent.

The court ultimately held that Sept. 29, 2001, was a proper demarcation point and the World Trade Center site was a proper geographical limitation for considering federal jurisdiction. Claims for respiratory injury based on exposures suffered at the World Trade Center site between Sept. 11 and Sept. 29 “arose out of,” “resulted from” or were “related to” the attacks of Sept. 11, 2001, and must proceed exclusively under the act in federal court.

After that point, or outside the World Trade Center site, the goals of demolition, cleanup and debris removal were dominant, the traditional state interest in regulating the health and safety of employees in the workplace reemerge, and any federal interest in displacing traditional state powers waned. Accordingly, claims arising out of demolition, cleanup and removal activities after Sept. 29, became “too tenuous, remote or peripheral” from federal concerns to warrant a finding that the law arises out of, results from or relates to the Sept. 11 terrorist-related aircraft crashes.

Consequently, the court held that all claims alleging respiratory injuries suffered at the World Trade Center site, up to and including Sept. 29, 2001, are preempted by the Air Transportation Safety and System Stabilization Act and must be tried in federal court, while claims incurred after that date or at different sites are not preempted and may be tried in state court.

This case, although arising from unique circumstances, still has some lessons to teach, among them:

• The urgency of the circumstances can sometimes cause us to overlook basic safety concerns. Personnel safety still must remain a paramount concern; failure to do so can result in legal exposure.
• The choice of forum can be a very important factor in the progress of a lawsuit.
• Making the causal connection between event and result isn't always an exact science.

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Philip C. Stittleburg, MIFireE, is a Wisconsin attorney who has been chief of the La Farge (Wis.) Fire Department since 1977. He has been legal counsel for the Wisconsin State Fire Fighters Association, legal counsel and Wisconsin director for the National Volunteer Fire Council Inc., president of the NVFC Foundation, and current NVFC chair. Stittleburg sits on the NFPA board of directors and has served on the committee for NFPA 1500.