The 9/11 Zadroga bill is fair enough.

The law, lawyers, and the court.
Dec. 23 2010 5:29 PM

Why the 9/11 Bill Is Fair Enough

Even if it's not perfectly just.

A firefighter at Ground Zero. Click image to expand.
A firefighter at Ground Zero

Firefighters and other 9/11 first responders celebrated Wednesday when Congress passed the Zadroga Act, with $4.3 billion for medical treatment and monitoring as well as compensation for economic loss, for those suffering the long-tail health effects of the Ground Zero cleanup. Passage of this bill rang down the tattered curtain on the 111th Session of Congress with what New York Sen. Kirsten Gillibrand called "a Christmas miracle."

The virtual unanimity of the vote came after the Senate rejected a far more expensive version of the measure ($7.4 billion) because of Republican opposition. The lower $4.3 billion total allowed deficit hawk Sen. Tom Coburn to support the bill while saying, "It is not compassionate to help one group while robbing future generations of opportunity."

Coburn's concern invokes a broader question that has received no attention at all: Is this act consistent with principles of overall fairness and justice? The answer is yes. But getting there requires much more thought than has been given to this law or than we generally give to compensation.

At the outset, it's important to separate out the two major components of the new law. Of the $4.3 billion total cost, $1.8 billion is set aside for the treatment and monitoring of those who inhaled or were otherwise exposed to the debris and toxic dust at Ground Zero. The $1.8 billion will cover most of the cost of treatment, and New York City will pick up the rest. It's hard to argue with that piece of the law. It's too much to ask NYC to bear the cost alone, and since medical care of public employees is a matter both of fairness and of contractual right, it's only surprising that this provision wasn't enacted years earlier.

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The tougher part is the other larger chunk of money: $2.5 billion for economic compensation for anyone (not just first responders) who suffers long-term injury from exposures to Ground Zero's toxic stew. That would include payment for lost wages from the time of disability as well as compensation for pain and suffering. It's this part that raises deep questions about justice and fairness in the way government compensates the victims of disasters.

The $2.5 billion will come from the reopened Victim Compensation Fund. The fund dates from the original 9/11 bill, enacted just 11 days after the twin towers fell. It mostly compensated the family members of those killed when the buildings collapsed, along with a small number of people in the World Trade Center who were injured but not killed (including a law school classmate of mine).

At the time, I criticized the VCF for confusing distributive justice and corrective justice, a distinction recognized, if also disputed, since Aristotle. Corrective justice is in play when two private citizens collide in a way that the law recognizes as calling for compensation. Personal-injury law provides a good example. When one automobile driver's negligence results in injury to a pedestrian, the injured party is entitled to compensation without regard to his or her wealth or earnings. The wrongful act justifies the resetting of the balance, and the damages paid also give potential defendants an incentive to take greater care in the future.

Distributive justice, by contrast, is concerned with the division of the goods of a society among its members. This is the work of government, and it always involves questions about proportion. Giving more to some means that others will have less. Of course, the difficulty lies in the implementation: How do we decide who is entitled to what?

The answer starts with insisting on consistent treatment of people injured or killed in like situations. The problem with the Victim Compensation Fund was that it paid surviving family members and injured victims as though they were people who had sued for negligence or intentional injury, entitled to the full compensation allowed for a wrongful death or injury. Some payments totaled several million dollars of taxpayer money. That's not how we usually treat the victims of a disaster. People injured or killed by the Oklahoma City bombing didn't get such payouts. Nor did the victims of Hurricane Katrina. They had to settle for a few thousand bucks and a lousy trailer from FEMA—even though their injuries, death, and displacement were tied to the negligence of government itself, which had failed to properly construct and maintain the New Orleans levees.

Even among those harmed or killed on 9/11, the VCF created unfairness. Because recovery was in large part based on lost wages, the government paid families of Cantor, Fitzgerald employees who died much more than families of firefighters, for example. The VCF's administrator, the ubiquitous Kenneth Feinberg (who is now in charge of the BP Oil Spill Fund), once responded to a question about how he would change the fund by saying: "Pay everyone the same."

Does the new $2.5 billion in the Zadroga Act repeat the same error? No. While Coburn is right to take into account distributive justice by bringing up the deficit, the case for compensation is solid here. Remember that government officials (most notoriously then-EPA Chief Christine Whitman) assured these cleanup workers that the air around Ground Zero was safe to breathe. So this is a stronger case than the one made for the first set of VCF beneficiaries. Perhaps it's enough to say that, where government is the negligent actor, it is fair to make it pay like any private citizen who would be found liable.

Or fairer, anyway. The victims of Katrina and of Oklahoma City will surely continue to ask: What about us?

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John Culhane is professor of law and co-director of the Family Health Law and Policy Institute at Widener Law Delaware.

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