Associated Press | NJ.com

NEW YORK — Former EPA chief Christine Todd Whitman cannot be held liable for telling residents near the World Trade Center site that the air was safe to breathe after the 2001 terrorist attacks, a federal appeals court said today.

In ordering the dismissal of the lawsuit, the 2nd U.S. Circuit Court of Appeals acknowledged that the EPA’s own inspector general had found the agency’s performance after the attacks was flawed. “But legal remedies are not always available for every instance of arguably deficient governmental performance,” the judges wrote.

The ruling came in response to a lawsuit by residents, students and workers in lower Manhattan and Brooklyn who said they were exposed to hazardous dust and debris from the fallen twin towers after Sept. 11.

The plaintiffs alleged that Whitman and EPA officials acting on her behalf made statements regarding air quality that failed to report or misrepresented health risks associated with the dust from the ruined skyscrapers.

They said Whitman, who also is a former New Jersey governor, should be forced to pay damages to properly clean homes, schools and businesses. A lower court judge had earlier refused to dismiss Whitman as a defendant, saying her actions were “conscience-shocking.”

But a Justice Department lawyer argued late last year that holding the former head of the Environmental Protection Agency liable would set a dangerous precedent in future disasters because public officials would fear making public statements.

Yusill Scribner, a spokeswoman for government lawyers, said there was no comment on the decision. A lawyer who argued before the appeals court for the plaintiffs did not immediately return a telephone message.

In its written ruling, the court said nothing in the lawsuit “alleges that any defendant intended to injure anyone,” and it noted that Congress established a special fund after the attacks to provide damages to those who were injured.

It said its finding was consistent with an earlier decision by the 2nd Circuit to reject a claim against Whitman and others by emergency workers who responded to the trade center site and those who cleaned it up afterward.

In both instances, the court said, such a claim could not be brought “against government officials, who, in the aftermath of an unprecedented disaster, were obliged to make operational decisions in a context where they were subject to competing considerations.”

The appeals court said Whitman “did face a choice between competing considerations, although not the stark choice between telling a deliberate falsehood about health risks and issuing an accurate warning about them.”