In the wake of the September 11, 2001, terrorist attacks and the anthrax scare that followed, Congress appropriated $6 billion for defenses against germ warfare. The result: an all-out rush among competing agencies -- from the Centers for Disease Control to the Department of Agriculture to the Department of Energy -- to expand or create new high-security "hot labs" for handling toxic biowarfare agents.
Of the more than two dozen such facilities planned or already in development nationwide, none has alarmed critics more than the one envisioned for the Lawrence Livermore National Laboratory in Livermore. The Department of Energy also wants to open a similar biolab at Livermore's sister compound, the Los Alamos National Laboratory in New Mexico. But Lawrence Livermore's location, 40 air miles from downtown San Francisco, would make it a one-of-a-kind germ and nuclear research hub near a major population center.
DOE officials say it makes sense to engage in germ research at high-security nuclear labs, especially Lawrence Livermore, which already is involved in studies aimed at detecting and identifying biological weapons. They say the existing Biotechnology Research Program at Livermore is helping to develop defenses against biowar agents while undertaking health-related biotech research.
Nonetheless, the national biodefense buildup has critics, including some prominent scientists, worried. "The proliferation of these labs is a recipe for disaster," says Eileen Choffnes, a program manager at the National Academy of Sciences, a private group that advises the federal government on scientific and technical matters. Choffnes fears that the Bush germ defense expansion could perversely end up creating training grounds for would-be terrorists. She also argues that commingling nuclear weapons and biowar research could also make Lawrence Livermore -- which, like Los Alamos, is managed by the University of California -- a prime target for terrorists.
Others object to construction of hot labs at the two fabled atomic weapons facilities on geopolitical grounds, saying that at the very least they create the perception that the United States -- despite treaty obligations and assurances to the contrary -- has secret ambitions to develop a new generation of bioweapons, and that other nations could be tempted to do so as well. "Try and think of a scenario in which you could send a worse signal on this issue than to do this kind of research at Lawrence Livermore and Los Alamos," says Edward Hammond, who heads the Sunshine Project, a biodefense watchdog group based in Texas. "I don't think there is one."
But unlike a slew of biowarfare labs that are proceeding apace -- including one at the University of Texas Medical Branch in Galveston and another at the Army's Fort Detrick in Maryland, one of the nation's largest existing biolabs -- the plans for Livermore and Los Alamos have hit a snag. Amid little fanfare, a federal judge in Oakland last month temporarily suspended work on both germ labs pending arguments in a lawsuit brought by two watchdog groups, Livermore-based Tri-Valley CAREs and Nuclear Watch of New Mexico.
The suit accuses Lawrence Livermore and Los Alamos of failing to comply with the National Environmental Policy Act, a 1969 law that requires federal projects be assessed for their potential ecological impact. Whenever a federal agency engages in action that may significantly affect the quality of the environment, the agency must prepare an environmental impact statement, an exhaustive review that typically takes 18 months or more to complete.
In submitting a much less detailed environmental assessment, the Department of Energy invoked a NEPA provision that relieves it of having to prepare an EIS by declaring that the planned biofacilities at Lawrence Livermore and Los Alamos will have no significant environmental fallout -- a claim critics scoff at. "The notion that these biolabs do not represent a significant impact is almost laughable," says Stephen Volker of Oakland, lead attorney for the labs' opponents and a longtime Sierra Club lawyer. Assistant U.S. Attorney Barclay Sanford, the government's point man in the case, declined to comment. U.S. District Judge Saundra Armstrong has set the next hearing for April.
The brouhaha over the biolabs comes at an especially inconvenient time for the University of California. Following security, managerial, and financial scandals, the Department of Energy announced that UC's decades-long management of Los Alamos -- where the first atomic bombs were built during World War II -- is no longer assured, since its contract with the government will be opened to bids in 2005. In November, President Bush signed legislation requiring competition for contracts to manage all six national labs financed by the energy department, including Lawrence Livermore and even Lawrence Berkeley National Laboratory, overlooking the UC Berkeley campus.
If the energy department is forced to prepare an EIS as the lawsuit requests, it could easily push back the opening of the biolabs at Lawrence Livermore and Los Alamos for up to two years. However, a court cannot block the eventual operation of the facilities. That's because, as the U.S. Supreme Court has ruled in a 1980 case, NEPA involves strictly procedural matters. Once the government makes a decision on a project subject to NEPA, judges can only make sure that it follows the law and considers the environmental consequences; they cannot reverse the decision itself.
But the real consequence of the legal challenge -- and why opponents of the biodefense buildup are watching it closely -- has more to do with the court of public opinion. Antagonists believe that if the government is forced to provide a full accounting of what they perceive as the unwarranted risks associated with the facilities, there will be a backlash.