Court Orders Halt to Shipment of Bio-War Agents

December 17th, 2003 - by admin

by Mayrlia Kelly / Tri-Valley CARES –

OAKLAND, CA (December 16, 2003) — Last night, in federal district court, Judge Saundra Armstrong issued an Order prohibiting any shipment of “select agents” to the Department of Energy’s (DOE) proposed advanced bio-warfare agent research facilities at the Lawrence Livermore National Laboratory in California and the Los Alamos National Laboratory in New Mexico. The Order was signed at 9:12 PM.

Two environmental organizations — Tri-Valley CAREs (Communities Against a Radioactive Environment) of Livermore, CA and Nuclear Watch of New Mexico, located in Santa Fe — filed suit against the new facilities on August 26, 2003. Their litigation charges DOE with violating the National Environmental Policy Act by approving advanced research on bio-weapon agents at its two principal nuclear weapon design labs without conducting a thorough review of the resulting environmental risks and impacts on international nonproliferation agreements.

The lawsuit asks the court to compel site-specific and programmatic Environmental Impact Statements and public hearings before the DOE can begin operation at either of the contested facilities.

The Stipulation and Order was negotiated by attorneys for the two environmental organizations and the Justice Dept. The Judge’s action last night implements the Order and places it under the jurisdiction of the court.

“We sought this Order so that DOE could not import live anthrax, botulism, bubonic plague and other deadly pathogens into these controversial bio-warfare agent facilities while the case was being heard,” explained Marylia Kelley, the Executive Director of Tri-Valley CAREs who lives across the street from Livermore Lab.

An Important Victory
“This is an important victory, and achieves our goal,” Kelley added. “Judge Armstrong’s action protects workers and communities,” commented Nuclear Watch Director Jay Coghlan. “This stay preventing introduction of dangerous bio-agents is a significant step in the right direction. Given both Labs’ shoddy environmental, security and management histories, I am confident that the court will soon also grant us the final relief we seek.”

The Order states, “Neither of the proposed BSL-3 facilities will begin operations with agents for which BSL-3 containment is recommended …or any select agents prior to May 15, 2004.” According to Kelley and Coghlan, “The public deserves no less than the protections granted by this Order.”

“We are pleased to see the court put the brakes on DOE’s planned operation of these very dangerous facilities,” commented plaintiffs’ lead attorney Stephan Volker of Oakland, CA. “These bio-warfare agent labs might have become magnets for terrorist attacks. Had the Justice Dept. not agreed to this stay, it would have had to defend DOE’s illegal approval against our motion for preliminary injunction.”

Hearing Set for April 2004
The Order also lays out a briefing schedule for the case and provides for a hearing on the merits by April 23, 2004. The Order anticipates a final decision by Judge Armstrong on or before May 15, 2004. “Should the court require more time, I am confident that Judge Armstrong will extend the Order, as needed,” Volker said. “I am looking forward to arguing the case. In my thirty years of practicing environmental law, rarely have I encountered a more flagrant violation of the National Environmental Policy Act.”

The term “select agents” refers to the several dozen bio-agents covered by Title 42 of the Code of Federal Regulations Part 73. The DOE defines them thusly: “select agents have historically been associated with weaponizing effects.” (Final EA for Proposed Construction and Operation of a Biosafety Level 3 Facility at Lawrence Livermore National Laboratory, page 18.)

Biological containment levels range from BSL-1, which handles only agents not known to cause illness in humans, to BSL-4, which houses agents for which there are no known cures, such as Ebola. A BSL-3 designation permits work with virulent pathogens used in both defensive and offensive biological warfare research.

For a copy of the Stipulation and Order, please call Tri-Valley CAREs at (925) 443-7148 or Nuclear Watch of New Mexico at (505) 989-7342. We will also post it on the web at and Copies of the legal Complaint are available on the web in PDF format.

For more information, contact Marylia Kelley, Executive Director, Tri-Valley CAREs, (925) 443-7148 Jay Coghlan, Executive Director, Nuclear Watch of New Mexico, (505) 989-7342 Steve Volker, Lead Attorney, (510) 496-0600.

Marylia Kelley is Executive Director of Tri-Valley CAREs [Communities Against a Radioactive Environment, 2582 Old First Street Livermore, CA USA 9455. (925) 443-7148. Fax: 925) 443-0177.