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February 23, 2012

U.S. Department of Energy Complied with NEPA by Taking a Hard Look at Whether Direct Terrorist Attack on Biosafety Facility Would Significantly Affect the Environment

U.S. Department of Energy Complied with NEPA by Taking a Hard Look at Whether Direct Terrorist Attack on Biosafety Facility Would Significantly Affect the Environment

Tri-Valley Cares v. U.S. Department of Energy [Ninth Circuit Court of Appeals No. 10-17636, filed February 7, 2012]

By Andrea A. Matarazzo

Tri-Valley Cares (Tri-Valley), a citizens group, sued the Department of Energy (DOE) alleging that the agency failed to prepare an Environmental Impact Statement (EIS) or, in the alternative, revise its Environmental Assessment (EA) of a future biosafety level-3 (BSL-3) facility at the Lawrence Livermore National Laboratory (LLNL).  Tri-Valley argued that DOE violated the National Environmental Policy Act (NEPA) in relation to the impact of a terrorist attack on the laboratory.


In December, 2002, the DOE authorized construction of a BSL-3 laboratory at LLNL.  BSL-3 labs work with agents that cause diseases in humans with serious or lethal consequences and have the potential of airborne transmission.  At the time, the LLNL BSL-3 facility was the only one in operation in the same facility as a nuclear lab.  DOE had decided to construct the facility onsite because limitations in its BSL-1 and 2 labs forced LLNL to conduct research off-site.  Off-site research became difficult and costly because LLNL did not have complete control, and shipping and handling increased the risk of cross-contamination and degradation.


The DOE performed an EA for the BSL-3 lab pursuant to NEPA.  The EA considered environmental impacts on a variety of issues, including human health, ecological resources, transportation, waste management, geology, soils and seismology, noise, and air quality.  The EA also discussed the Center for Disease Control (CDC) and the National Institutes of Health (NIH) guidelines that govern the operations and mitigate the risk of infection and accidental release.   In addition, the DOE evaluated public risk and relied on three major sources of data:  “(1) statistics from hundreds of other CDC-registered BSL-3 laboratories; (2) the U.S. Army’s Biological Defense Research Program and labs; and (3) LLNL’s BSL-1 and -2 labs.”  The EA also analyzed potential abnormal impacts on those sources using a “catastrophic release” scenario simulating the impact of a pathogen’s accidental release.  The DOE concluded that even if a catastrophic release were to occur, there would be no significant impact on public health or safety.  This conclusion led the DOE to issue a Finding of No Significant Impact (FONSI).


In August 2003, Tri-Valley challenged the EA on numerous grounds.  In September 2004, the district court granted summary judgment for the DOE, indicating that the DOE had satisfied the requirements under NEPA in preparing the EA.  On appeal, the Ninth Circuit updhel the EA, except for the DOE’s failure to consider the environmental impact of a terrorist attack.


On remand, the DOE prepared a Draft Revised Environmental Assessment (DREA) addressing the impacts associated with terrorist attacks by considering three general types of terrorist threats:  (1) a direct terrorist attack at the facility, resulting in loss of containment; (2) the theft and release of pathogenic materials by an LLNL terrorist outsider; and (3) the theft and release of pathogenic material by an LLNL terrorist insider.  After public comment, the DOE found no significant environmental impact would result from a terrorist attack on BSL-3 lab.


In March 2008, Tri-Valley filed a new lawsuit alleging the DOE failed to prepare an adequate EA and FONSI, failed to prepare an EIS, failed to supplement the REA, and failed to publicly circulate the FONSI.  Tri-Valley relied upon three primary arguments that (1) the DOE relied on the same centrifuge analysis used in the original EA to assess the dangers of a terrorist attack; (2) DOE’s failure to disclose information related to a 2005 anthrax shipping incident in the March 20087 DREA violated NEPA; and (3) the DOE failed to disclose information regarding violations for “restricted experiments” conducted at the LLNL BSL-3 facility, in violation of NEPA.  The District Court granted defendant summary judgment on the grounds that the DOE had properly conducted its analysis in revising the EA, in compliance with this court’s original mandate.


In affirming the District Court ruling, the Ninth Circuit Court of Appeals held that the DOE took the required “hard look” at the environmental impact of an intentional terrorist attack as required by NEPA in determining that a direct terrorist attack on the proposed facility would have no significant impact on the environment.  Further, the agency took the requisite hard look in determining that the proposed facility would not be an attractive terrorist target, and therefore the risk of theft and release of pathogens from the facility by either an outside terrorist or a terrorist insider would have no significant environmental impact.  The appellate court concluded that the DOE had complied with NEPA’s requirements for public disclosures and that supplementation of the EA was not required.


Authored by:

Andrea A. Matarazzo

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