Remembering Those Still with Us: Protecting September Eleventh Survivors from Their Future

Eleven days after the terrorist attacks of September 11th, 2001, Congress passed the Air Transportation Safety and System Stabilization Act (ATSSSA). Title IV of the Act created the September 11th Victim Compensation Fund of 2001 (the Fund), an administrative compensation scheme for those victimized by the attacks. The Act's organic legislation presents the purpose of the Fund with great simplicity: It is the purpose of this title to provide compensation to any individual (or relatives of a deceased individual) who was physically injured or killed as a result of the terrorist-related aircraft crashes of September 11th, 2001. However, the definition of eligible individuals in the rules subsequently promulgated to administer the Fund greatly limited the pool of people eligible for compensation. Additionally, driven by the broader purpose of the ATSSSA, to protect the airlines involved in the 9/11 attacks, Congress capped the liability of the airlines at the limit of their insurance coverage. This limited the airlines' liability to approximately six billion dollars. In combination, the restrictive definition of eligible individuals and the airlines' limited liability created a class of victims, those injured by the 9/11 attacks but ineligible for the Fund, whose recovery - if any - will be limited to the airlines' insurance coverage. This class notably includes the estimated 300,000 people exposed to the toxic plume released into lower Manhattan after the collapse of the World Trade Center towers and the rescue workers who arrived at the site more than 72 hours after the attacks. I assert that Congress had no authority to cap the liability of the airlines with respect to those victims ineligible for the Fund. This comment discusses the grounds on which the limited liability provision of the legislation should be held unconstitutional and proposes that an alternative compensation scheme to anticipate and resolve the claims of latent injury victims should be created.