Christine Todd Whitman cannot be held liable for telling residents near the World Trade Center site that the air was safe to breathe immediately after the 2001 attacks, a federal appeals court ruled yesterday.

The 2nd U.S. Circuit Court of Appeals dismissed a lawsuit brought against her by residents, students and office workers.

It found that she was trying to comply with instructions from the White House to get Wall Street operating again at the same time that she was responsible for the health risks people faced

“Whether or not Whitman’s resolution of such competing considerations was wise, she has not engaged in conduct that ‘shocks the conscience’ in the sense necessary to create constitutional liability for damages to thousands of people,” the court said.

As a result, her immunity as a federal official was not waived.

Whitman was quoted saying the air was safe in a press release from the EPA seven days after the attacks:
“I am glad to reassure the people of New York and Washington, D.C., that their air is safe to breath and their water is safe to drink,” she said.

Whitman always insisted that her agency behaved properly.

But two years later the EPA’s Office of Inspector General criticized her sharply for her statement. She could not have known the air indeed was safe, according to a report the office issued.

“For several pollutants of concern, sampling did not begin until September 16, and in many cases the results were not known until after the September 18 press release was issued. EPA was not able to obtain samples and monitor air due to difficulties in access and security, power supply sources, equipment availability, and analytical capacity. As a result, data available before September 18 for making conclusions about air quality for pollutants other than asbestos was limited.”