Workers' Rights as Human Rights and Safety Act of 1970, embodying a national policy to reduce or prevent occupational harms, and laws designed to compensate those who suffer them. In the nal section we explore the twenty-rstcentury global dimensions of workplace health and safety. Throughout, we pay particular attention those who are most vulnerable. In November 2004, an Army National Guard medic led a class action against the Environ- mental Protection Agency (BPA), the White House Council on Environmental Quality, and the Occupational Safety and Health Administration (OSHA) on behalf of all those who worked in the immediate vicinity of the World Trade Center from September 11, 2001 to October 31, 2001. The plaintiffs claimed that statements in EPA (headed by Christine Whit- man at the time) press releases issued in the wake of the disaster were made (1) to speed work at the site, (2) with the knowledge they were false or misleading, and (3) with deliber- ate indifference to the health risks of the workers. The court must decide if those allegations are enough to allow plaintiffs to move to the next stepa trial. JACOBS, Chief Judge. The collapse of the World Trade Center towers on [September 11, 2001] generated a cloud of debris that coated the surrounding buildings and streets of Lower Manhattan with concrete dust, asbestos, lead, and other building materials. Fires within the wreck- age burned for months, emitting various metals and particulate matter in addition to such potentially harmful substances as dioxin, polychlorinated biphenyls (PCBs), volatile organic compounds, and polycyclic aromatic hydrocarbons. The plaintiffs arrived at the site on September 11 or in the days soon after: John Lom~ bardi is a medic; Roberto Ramos, Jr. is \"an Emergency Services Officer in the New York City Corrections Department; Hasan A. Muhammad is an Emergency Services Captain... ; Rafael A. Garcia is a Deputy U.S. Marshal; and Thomas E. Carlstrom is a paramedic... They participated in search, rescue, and cleanup work at the site, with little or no equip- ment to protect their lungs. They were not told by their employers or any government offi cial about the health risks posed by the dangerous contaminants in the air, and they thought they could work at the site with little or no respiratory protection based on the information available to them, including statements of government officials indicating that Lower Manhattan's air quality presented no significant health risks to the public... A September 13, 2001, EPA press release [i] indicated that initial environmental tests done at the site after the terrorist attacks were "very reassuring about potential exposure of rescue crews and the public to environmental contaminants"; liil concluded that the results of "[aldditional sampling of both ambient air quality and dust particles in lower Manhattan were uniformly acceptable\"; and [iii] expressed the EPA's intent to work with other agencies and rescue workers to provide respiratory equipment and to make sure they observed appropriate safety precautionsassistance that the plaintiffs allege (to their knowledge) never materialized... 167 75 76 168 CHAPTER 5 A September 16 EPA press release reported additional good news: "New samples confirm previous reports that ambient air quality meets OSHA stan - dards and consequently is not a cause for public concern... EPA has found variable asbestos levels in bulk debris and dust on the ground, but EPA continues to believe that there is no significant health risk to the general public in the ceming days." [A] September 18 press release [by the EPA] reported that the "vast majority" of air samples taken near the site measured harmful substances at below maximum accept- able levels... [Tlhe highest asbestos levels were close to the site itself, where rescue and cleanup workers were supposedly being supplied with adequate equipment... In fact, according to the EPA Inspector General, 25 percent of the bulk dust samples taken up to that point recorded asbestos at levels representing a significant health risk.... [A] September 12 internal EPA e-mail directed that all statements to the media were to be cleared by the National Security Council [through the CEO] before release and in response to the CEO's suggestions the EPA [i] removed a reference to recent test samples that recorded higher asbestos levels than those in previous samples and iii] added a quote* from John L. Henshaw of OSHA assuringthat it was safe to, go to work in Lower Manhattan... [*"Our tests show that it is safe for New Yorkers to go back to work in New Yorkfs financial district... Keeping the streets clean and being careful not to track dust into buildings will help protect workers from remaining debris] Under the Due Process Clause of the Fifth Amendment of the Constitution, "[nlo per- son shall be deprived of life, liberty, or property, without due process of law. " This clause has been interpreted as a "protection of the individual against arbitrary action of government..." [But] government action resulting in bodily harm is not a substantive due process violation unless "the government action was 'so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.\" Only an affirmative act can amount to a violation of substantive due process, because the Due Process Clause "is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security. " ...It is not enough to allege that a government actor failed to protect an individual from a known danger of bodily harm or failed to warn the individual of that danger. So, to the extent the plaintiffs here allege that the defendants had an affirmative duty to prevent them from suffering expo- sure to environmental contaminants, their claims must fail. They cannot rely on the EPA's failure to instruct workers to wear particular equipment, its failure to explain the exact limitations of its knowledge of the health effects of the airborne substances that were present, or its failure to explain the limitations of its testing technologies. But the complaint goes further; it alleges that defendants' affirmative assurances that the air in Lower Manhattan was safe to breathe created a false sense of security that induced site workers to forgo protective measures, thereby creating a danger where oth- erwise one would not have existed. \"[lln exceptional circumstances a governmental entity may have a constitutional obligation to provide protection, either because of a special relationship with an individual, or because the governmental entity itself has created or increased the danger to the individual." The plaintiffs allege no "special relationship" between them and federal officials... They plead that their reliance on the government's misrepresentations induced them to forgo available safeguards, and thus characterize the harm as a state created danger.... [Plaintiff's' allegations allow the court to assume that defendants' optimistic state- ment caused them to experience a false sense of security that led to the harmful exposures} But, [iln order to shock the conscience and trigger a violation of substantive due process, official conduct must be outrageous and egregious under the circumstances; it must be truly "brutal and offensive to human dignity.\" [Dleliberate indifference that shocks in one environment may not be so patently egre- gious in another.... The complaint recognizes what everyone knows: that one essential government function in the wake of disaster is to put the affected community on a normal footing, Workers' Rights as Human Rights i.e., to avoid panic, keep order, restore services, repair infrastructure, and preserve the economy. If anything, the importance of the EPA's mission counsels against broad constitu- tional liability in this situation: the risk of such liability will tend to inhibit EPA officials in making difficult decisions about how to disseminate information to the public in an envi- ronmental emergency [and] officials might default to silence in the face of the public's urgent need for information... Can the goals of a government policy possibly outweigh a known risk of loss of life or bodily harm? The EPA and other federal agencies often must decide whether to regulate particular conduct by taking into account whether the risk to the potentially affected popu- lation will be acceptable. Such decisions require an exercise of the conscience, but such decisions cannot be deemed egregious, conscienceshocking, and "arbitrary in the consti- tutional sense," merely because they contemplate some likelihood of bodily harm.... When great harm is likely _to befall someone no matter what a government official ,does, the allocation of risk may be a burden on the conscience of the one who must make such decisions, but does not shock the contemporary conscience. Theseprinciples apply notwithstanding the great service rendered by those who repaired New York, the heroism of those who entered the site when it was unstable and on fire, and the serious health consequences that are plausibly alleged in the complaint. [HELDz] Because the conduct at issue here does not shock the conscience, there was no constitutional violation. [The lower court's dismissal of the case is affirmed.) QUESTIONS 1. Plaintiffs did not allege thatthe defendants acted with evil intent to harm them. On what basis, then, did they claim that defendants were responsible for the harm they suffered? Why does the court dismiss that claim? 2. Do you agree with Judge Jacobs that the assurances given by the EPA were not shocking to the contemporary conscience? 3. In a sense, the judge's ruling here is in sync with the "no duty to rescue" rule dis- cussed in Chapter 1. Which exception to the rule did the plaintiffs hope to use? 4. Identify the ethical issues that arise in this case for (a) rescue workers, (bl EPA offia cials, and (cl Judge Jacobs. What would have been the ethical thing for each of them to do? 5. Research: In the immediate aftermath of the collapse of the Twin Towers, it was fair to assume that there were safety risks at the site. Within days of the attack, Congress established a September 11 Victim Compensation Fund. Kenneth R. Feinberg, a law- yer, served as administrator, doling out more than $7 billion to the families of those who died in the WTC attacks and to rescue and cleanup workers who had already been diagnosed with respiratory ailments. After the fund expired, many others began to experience health problems. People who lived or worked near the WTC also suf- fered health impacts. Who are the stakeholders in this scenario? Should anyone be compensated for their injuries? How? 6. Research: In another lawsuit growing out of the WTC disaster, some 10,000 workers whose health was damaged at ground zero sued the City of New York, the Port Authority, and more than 100 private contractors working at the site, claiming that those in charge of the clean-up had emphasized speed over safety. A study released in April 2010 showed that rescue workers lost about 10 percent of their lung function in the year after the attack, with little or no recovery over the next six years. Two months later, after eight years of litigation, Judge Hellerstein gave tentative approval to a settlement that would establish a $712 million fundto be administered by Feinbergto compensate for illnesses. Payments would range from $3,250 to workers 169 77