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Peter Steinberg | USLHC | USA

View Blog | Read Bio

IT IS SO ORDERED

I heard you, Steve, and not to dance on the ashes here but…boo-yah!

For more information, there’s a Times article this morning and MSNBC’s Alan Boyle posted the PDF of the decision and a run down of the current situation.  Boyle also has a pretty wild posting on the legal activity in early September that’s worth a look, if only to make one sympathetic for Judge Helen Gillmor and her dealings with the various sides.

Before I discuss the order, an interesting issue which arises, as one reads the various accounts, is the disparity between the various construction costs of the LHC reported in the articles, e.g., the $5.8B by the Honolulu Star Bulletin and the $8B reported by Overbye.  Just last night, at a family dinner, I found myself unsure of a “single” number, always fumbling between $5B and $10B — and now I realize that it’s not completely my fault.  Boyle writes:

Cost: $6 billion to $10 billion
Why the wide range of estimates?
Europe’s CERN research organization says it’s investing $6 billion. Adding the value of other contributions since 1994, including the detectors, boosts the total to as much as $10 billion. To some extent, it depends on who’s doing the counting and what the currency rates are.

But today I’ve been struggling reading through the District Court Order to try and understand the various arguments leading to dismissal.  The main issue seems to be whether or not the U.S. participation in the LHC is a “major Federal action” as defined by NEPA (National Environmental Policy Act), which might require it to file various safety reports.  This is including construction, operation, and control of the project.  Even the lower range of the construction costs was sufficiently large for the judge to deem that the fraction of the total budget the $531M the U.S. contributed to LHC and detector construction (a useful number to keep in mind, if anyone asks) was too small to count as a “major Federal action”. The issue of future funding for operations involves support of U.S. scientists (e.g. us!) and is in the noise of the LHC project, and is thus no issue.  Finally, the U.S. role in the LHC project from now on is spelled out clearly (full of useful cocktail party facts for those of you who collect such things):

According to the evidence before the Court, the United States has minimal control over the LHC project. The 1997 Agreement provides that the construction, operation, and management of the LHC is the responsibility of CERN, an  intergovernmental European agency whose governing council is comprised of 20 European countries. (Strauss Decl. ¶¶ 5, 12.)

The 1997 Agreement, entered into between Federal Defendants and CERN, only gave the United States non-voting “observer” status in CERN’s governing council and no role in financial, policy, or management decisions or operation of the LHC. (Id. at ¶¶ 12, 13.)

And from there it’s all downhill for the plaintiffs.  The US contribution fails on all counts to qualify as a major Federal action, and thus is of no relevance of NEPA, and thus precludes the Federal Court from having any jurisdiction to address Wagner & Sanchos complaints:

Plaintiffs’ Opposition and Rebuttal have not provided any substantive information regarding the subject matter jurisdiction of this Court. Plaintiffs appear to believe they invoked federal jurisdiction by simply filing suit in a federal court. They have not met their burden of establishing that jurisdiction exists. Scott, 792 F.2d at 927.

Ouch.

Of course, while we’re out of the woods here, it’s worthwhile highlighting Judge Gillmor’s concluding paragraph of the order, already quoted at length by Boyle, which capture the frustration many of us have felt about this use of the courts against scientific research:

It is clear that Plaintiffs’ action reflects disagreement among scientists about the possible ramifications of the operation of the Large Hadron Collider. This extremely complex debate is of concern to more than just the physicists.  The United States Congress provided more than $500 million toward the construction of the Large Hadron Collider. But Congress did not enact NEPA for the purpose of allowing this debate to proceed in federal court. “Neither the language nor the history of NEPA suggest that it was intended to give citizens a general opportunity to air their policy objections to proposed federal actions. The political process, and not NEPA, provides the appropriate forum in which to air policy disagreements.” Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 777 (1983).

CONCLUSION

The Court lacks jurisdiction to adjudicate this action.
Defendants’ Motion to Dismiss (Doc. 14) is GRANTED.
The entire action is DISMISSED.
IT IS SO ORDERED.
Dated: September 26, 2008, Honolulu, Hawaii.

I think many of us would have assumed this conclusion from the outset, and that it wouldn’t have required as much legal back-and-forth (and especially wouldn’t require an amici curiae filing from Sheldon Glashow, Frank Wilczek, and Richard Wilson — go figure!).  But Wagner and Sancho seem to have played a tough game and forced a lot of people to spend a lot of time and energy discussing — and defending — the importance and overall safety of the LHC.  In many ways the time wasn’t wasted, as now the world knows a lot more about the physics of the LHC, which was the most important issue all along.  But I speak for many of us who feel that this was ultimately unproductive work for the Court system, our labs, our scientific funding agencies, and their lawyers, and the scientists.

So let’s not let this happen again (I mean, us RHIC & LHC folks have been through this twice now).  Let’s get back to work (and waiting).

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