No Decision Yet in CMRR Lawsuit

A Special Bulletin from the Nuclear Weapons & Materials Monitor

May 5, 2011

NO DECISION YET IN CMRR LAWSUIT.  A second day of arguments in an Albuquerque federal court about Los Alamos National Laboratory's Chemistry and Metallurgy Research Replacement-Nuclear Facility ended without a decision, as both sides in the case took jabs at the other during three hours of deliberations. But the most interesting exchange came from federal Judge Judith C. Herrera, who explored the Los Alamos Study Group's argument that the NNSA has side-stepped National Environmental Policy Act rules and moved forward with the project despite drastic changes. Rather than complete a full environmental analysis, the NNSA has opted to update the 2003 Environmental Impact Statement for the facility with a supplement analysis and plans to issue a new Record of Decision later this year, but the Study Group and its lawyer has argued that the agency hasn't seriously considered other options aside from building the multi-billion-dollar facility and is seeking an injunction to halt work on the project. "How does that process square with what the plaintiff says, the fact that the supplement is basically a sham process, that the options on the table are pre-ordained or aimed at a particular result?" Herrera asked Justice Department lawyer Andrew Smith, who was arguing the case for the NNSA.

Smith noted progressive changes and input from the Defense Nuclear Facilities Safety Board and the inclusion of a deep or shallow option for excavation of the facility. However, Study Group lawyer Tom Hnasko called NNSA's latest draft Supplemental Environmental Impact Statement a choice between "digging a hole or digging a deeper hole," and he cautioned that the NEPA process required more than proposing "design variations to your chosen alternative." Herrera didn't indicate when she will decide on the injunction, but court watchers say a written decision could come within 10 to 20 days. "I have a number of things to review," Herrera said. "I will take the matter under advisement."