Last week, the United States Second Circuit Appeals Court rejected New York City’s claim of immunity for health injuries caused by the World Trade Center clean up, thereby allowing the 8,000 or more individual cases brought by police, firemen, and other recovery workers to proceed.

The city’s finest moments were the months following September 11, 2001, when tens of thousands of individuals, companies, and governmental employees responded heroically and selflessly, working around the clock, to restore the city. The tortuous and expensive course of this litigation ensures that such an outpouring of civic bravery, speed, and dedication will never happen again.

The tort system is helping no one here. Four years after filing, these worker injury cases, although consolidated under Judge Alvin Hellerstein of the federal Southern District Court for New York, are benefiting only the lawyers. Judge Hellerstein recently found Lloyds of London and other insurers liable for defense costs, which already are estimated to have run $100 million. As of March 2007, the city alone had spent an estimated $56 million for defense costs and overhead from its $1 billion dollar captive insurance company, which was created from the $20 billion Congress promised the city following September 11, and whose purpose is to cover the city for additional claims.

In each of the 8,000 or so cases, the claimants have named the same set of hundreds of defendants, a laundry list of downtown property owners, large and small construction-related companies, as well as the City of New York and the Port Authority. So on top of the city’s defense costs, these hundreds of private companies, and their insurance carriers, have already spent tens of millions of dollars in legal fees — although discovery in the cases has barely begun, trial is years away, and the workers have received nothing.

The New York Times recently ran a story on a small engineering firm that found itself caught up in the fray and the bewilderment of the owner of the company, to find himself a defendant in 8,000 injury cases because of his involvement in restoring the city. This current litigation will certainly affect the response the next time there is an attack in America. Will the small engineering company, not to mention hundreds of other companies, often working without contracts, rush to help the city next time? This litigation questions the right of even governments to respond speedily to disaster. Both state and federal statutes recognize the need to protect governments and grant immunity for disaster activities. However, the New York State Emergency Defense Act requires the actions to be taken in good faith. Judge Hellerstein, upheld by the Second Circuit’s recent decision, has ruled that the law does not grant automatic immunity for facts must be developed at trial to determine if the city acted in good faith.

The city also argued that the federal Stafford Act, which grants complete immunity from suit for federal disaster activities, applies to the city because federal agencies were actively involved in the clean up. But again, the Second Circuit ruled last week that facts must be developed at trial on the extent to which the federal agencies controlled the clean up, in order to convey derivative immunity to the city.

The lesson of these recent rulings is that no municipality can allow its employees and private contractors to rush to help victims and rebuild infrastructure and facilities. Rather, nothing can be done until tests declare the environment safe and measures can be agreed upon to protect workers. Look at the seven years it has taken to remove the Deutsche Bank building. Imagine if it had taken six months of testing before New York could begin to clean up and then had to engage in slow, painstaking remediation action. Lower Manhattan would have been frozen for years in debris, helplessness, and inaction.

There are alternatives to the tort system. While some workers and others exposed to the post September 11th conditions exhibit respiratory symptoms and increased levels of particulates, the long term effects are not known and health care monitoring is recommended, according to a 2007 New England Journal of Medicine article. Thus Reps. Carolyn Maloney and Vito Fossella have proposed Congressional legislation for additional money for monitoring. Others, such as the Partnership for New York City and Senator Clinton, have asked Congress for money for treatment. The New York State Workers Compensation Fund expanded the time period for filing compensation claims for WTC injuries. Workers could be guaranteed health care coverage for life.

Finally, and probably most effectively, the September 11th Victim Compensation Fund, which currently limits benefits to those injured within 72 hours of the disaster, could be reopened. New York Corporation Counsel Michael Cardozo has just testified before Congress in support of Rep. Jerrold Nadler’s proposal to do so. The special master of the original Fund, Kenneth Feinberg, is also in favor of this action.

The principles motivating the initial Victim Compensation Fund argue for this approach: a desire to quickly compensate the victims in a simplified, sympathetic forum, to shield the participants from expensive litigation from an event they did not create, and most importantly to express a sense of national support and unity for the actions of those affected, both the responders as well as the victims.

The September 11th Victims Fund and special master dealt efficiently and equitably with the immediate consequences of the attack and avoided years of delay and hundreds of millions of dollars in litigation costs. If anything, the argument for a fund is even more pressing for the recovery workers.

Without the fund and a waiver of litigation, the country has wasted four years and $100 million without helping any of the injured. Not only do we want to fairly treat those who selflessly rush to the City’s rescue, but it is important social policy to encourage, not discourage, this type of response in the future. If ever there were a Homeland Security issue, this is it.

Ms. Krolik is general counsel to Terra Holdings, a group of New York City real estate companies, two of whose affiliates were named as defendants in the World Trade Center clean-up cases.