Judge tosses CMRR lawsuit

-A A +A

Los Alamos Study Group loses bid to have project halted

By John Severance

The timing was rather ominous.

A couple of hours before the first public hearing regarding the Chemistry and Metallurgy Research Replacement Project, a federal judge threw out a lawsuit that sought to halt development of a $5.8 billion plutonium laboratory at Los Alamos National Laboratory.

U.S. District Court Judith Herrera ruled a new environmental analysis and planned hearings should be adequate to address new concerns about earthquake dangers.

Understandably, the Department of Energy was happy with the decision.

“We are pleased with Judge Herrera’s decision on this critical project,” DOE spokesperson Toni Chiri said. “The NNSA is committed to carrying out this process in an appropriate and responsible manner as we seek feedback from the community on the CMRR Draft Supplemental Environmental Impact Statement through the National Environmental Policy Act process.”

Los Alamos Study Group, under director Greg Mello, filed the lawsuit, which they said sought to compel NNSA and DOE to pause design and construction of the project to prepare an environmental impact statement (EIS) that examined alternatives to the project. They claim the project is much bigger, with far greater environmental impact, than when it was originally proposed and analyzed under NEPA in 2003.

“We believe our arguments were sound and remain sound, factually and legally.  We are studying the judge’s opinion closely and will decide our legal course of action over the next few days,” Mello said. “It is never legal for a federal agency to decide to implement a project with significant environmental impact without an applicable, objective EIS, and that is what is happening here.  
“This decision, while disappointing, will not stop our opposition to this highly destructive project.  It’s a speed bump.  If NNSA thinks they are in the clear now, they are wrong.  This ruling doesn’t change the facts on the ground -- the high seismicity, the cramped site and poor geology, the lack of need, the lack of money, and the basic horror and immorality of the mission.  All of these are unfavorable to this project.”  

Herrera ruled against the lab’s critics, saying NNSA should not be required to “start over from scratch when they encounter new information that results in design challenges.”

Herrera’s decision was based on magistrate court judge Alan Torgeson’s ruling in January that the court dismiss the suit because of “prudential mootness.”

In her 22-page decision, Herrera wrote, “Plaintiff’s objections rely on two fundamental assertions that do not bear up under scrutiny: first, that NEPA requires Defendants to undertake a new EIS from scratch before moving forward with the project, and second, that Defendants are currently moving forward with final design and construction in violation of NEPA.

“Because neither of these is correct, the magistrate judge properly applied the doctrine of prudential mootness to dismiss this case. The record before the Court demonstrates that defendants have followed an orderly process as contemplated by NEPA with respect to the project in question.”

Herrera also cited the fact that the CMRR was not under construction because the project still was under environmental review.

The second of four CMRR meetings will begin at 5 this afternoon in Los Alamos at the Holiday Inn Express.

There also will be meetings Wednesday in Espanola and Thursday in Santa Fe. The first meeting was held in Albuquerque Monday.

Los Alamos acting county administrator Randy Autio said the county was happy with the way the court ruled.

“We support the lab as being viable and productive and this project will allow that to happen,” Autio said. “We are happy the court decided the way it did.”

Even before the decision, Mello had been urging members of the public to stay away from the SEIS hearings, which it regards as illegitimate and he also claims construction of the project already is a done deal.

“We need to call them ‘hearings,’ in quotations,” Mello said, “because the public record is replete with Administration statements saying it is not under any circumstances going to reconsider its commitment to this project, unlike what is implied in the hearing process; because the SEIS openly and illegally rejects all alternatives but the favored project in its opening pages; and, more broadly, because we believe experience has shown that DOE has never changed its course of action as a result of NEPA “public participation.”  

The Study Group has instead called citizens to engage substantively with government on all levels to challenge and reform NNSA’s position in regard to the project.  Mello said local resolutions supporting the Study Group’s lawsuit were passed by four local governments (Santa Fe, Taos, Penasco and Jemez Pueblo).  

“In numerous discussions public and private spanning many years we have concluded that unless citizens can find the courage to face the abyss of freedom and learn to act politically, they will largely remain incapable of self-governance,” Mello said.

The Associated Press contributed to this report.