Fate of LANL building rests in judge's hands

Group: Analysis doesn't reflect facility's environmental harm

By Roger Snodgrass

5/2/2011

ALBUQUERQUE — National security met environmental protection in a crossfire Monday, as a federal legal team wrapped up its defense on behalf of the largest construction project in New Mexico history, aside from the interstate highway system.

When the hearing began Wednesday in federal court, attorneys for the Los Alamos Study Group, a nonprofit public-interest organization, presented their case for stopping all work on a $4 billion to $6 billion proposed Chemistry and Metallurgy Research Replacement Nuclear Facility at Los Alamos National Laboratory while a new environmental impact statement is prepared.

The group's argument centered on the National Environmental Policy Act, which establishes a framework for federal environmental planning and protection that the group contends the government has not met.

"We can all agree that some sort of NEPA process is going on presently," said Santa Fe attorney Tom Hnasko, "but (a federal agency) cannot implement a federal project while a NEPA process is going on."

Andrew Smith, a trial lawyer in the Office of the United States Attorney for the District of New Mexico, representing the National Nuclear Security Administration, argued the NEPA process under way is an extension of several previous environmental studies that led to a formal record of decision in 2004 to build the nuclear facility.

"That (2004 record of decision) is still in effect," Smith said. "The statute of limitations has been exhausted and cannot be challenged."

He argued that as design work on the building progressed, new information came up that needed to be incorporated in the plans for the building.

Sharp upward projections in the construction cost estimates, a result of protecting the building against the possibility of a 7.3 magnitude earthquake, were followed by the plaintiffs' notice of the pending legal complaint. Shortly after that, NNSA decided to pursue a new draft supplement under the NEPA process, saying it had been in the works before the notice. The supplement was released last week and is scheduled for a public comment period, working toward a new record of decision.

Under a legal principle known as "the ripeness doctrine," Smith said, the challenge is premature until a public process results in a new formal decision.

Judge Judith C. Herrera asked, "How does that process square with what the plaintiff says, that the supplemental analysis is basically a sham process, and that the options on the table are pre-ordained and aimed at a particular result?"

"They have constantly changed the design," Smith said, noting the project has incorporated a number of recommendations from the Defense Nuclear Facility Safety Board, which had a congressional mandate to certify the safety of the seismic issues in construction.

"They're not locked into any alternative," Smith said. "It's the opposite of a sham."

Smith said his clients, the Department of Energy and the National Nuclear Security Administration, "have committed to a final design, but the Nuclear Facility will not continue into final design or construction until a new ROD has been completed."

"I didn't use the word 'sham,' but I will adopt the term, because it is one," Hnasko said.

"Are they committed?" he asked. "Yes, they said it today. The injunction should be granted on that basis alone."

Herrera asked him if there were any remedies short of the court's involvement.

"They cannot go back without the court's involvement," Hnasko said.

Smith cited a number of legal precedents for requiring very stringent standards to prove the government is acting in bad faith. He found a number of parallels with a 2008 Supreme Court decision, Winter v. Natural Resources Defense Council, that sided with Naval sonar use in Southern California despite its effects on whales and dolphins, because "national security is so much more important that the 'balance of harms' is easily found in favor of the national security issue."

Hnasko reminded the court that the nuclear facility had grown to 12-and-a-half stories underground.

"It has more concrete than Elephant Butte and more steel than the Eiffel Tower," he said.

"I have a lot of things to review," Herrera said. "I will take the matter under advisement."