Feb 7: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-17636. Appealed from the United States District Court for the Northern District of California. The case arises out of Plaintiffs-Appellants Tri-Valley CAREs' (Tri-Valley CAREs) second challenge to the sufficiency of the U.S. Department of Energy's (DOE) Environmental Assessment (EA) of a prospective "biosafety level-3" (BSL-3) facility at the Lawrence Livermore National Laboratory (LLNL). In an earlier round of litigation, the Ninth Circuit upheld all aspects of the DOE's original EA, except for its failure to consider the impact of a possible terrorist attack. Following a remand, on September 30, 2009, the district court entered summary judgment in the DOE's favor on the grounds that it had sufficiently revised its Final Revised Environmental Assessment (FREA) to adequately consider the environmental impact of an intentional terrorist attack on the BSL-3 facility at LLNL.
On November 18, 2010, Tri-Valley CAREs appealed the district court's decision, petitioning the Appeals Court to require the DOE to prepare an Environmental Impact Statement (EIS), or, in the alternative, to revise its EA, in light of the allegations set forth in its original complaint, to determine whether an EIS is required.
The Appeals Court ruled, "We hold that the DOE took the requisite 'hard look' at the environmental impact of an intentional terrorist attack in the manner required by the National Environmental Policy Act (NEPA) and San Luis Obispo Mothers for Peace v. Nuclear Regulatory Commission, 635 F.3d 1109 (9th Cir. 2011). We further hold that the district court did not abuse its discretion in denying Tri-Valley CAREs' motion to supplement the record. Accordingly, we affirm."
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