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Lawsuit Seeks Halt to Lab Plans, New Environmental Review

By Richard Brenneman
Friday August 24, 2007

Berkeley’s oldest tree-sitter, two Panoramic Hill residents, and two Berkeley landmark commissioners—one current, one former—have joined forces to file a legal challenge to expansion plans at Lawrence Berkeley National Laboratory (LBNL). 

The petition for a writ of mandate lodged in Alameda County Superior Court last Friday challenges the UC Board of Regents’ July 17 adoption of the environmental impact report (EIR) for the lab’s Long Range Development Plan (LRDP) 2026 and the LRDP itself. 

If successful in their request for an order halting efforts to move forward with new projects, the action could delay plans to build a new lab building to house the controversial $500 million BP-funded Energy Biosciences Institute. 

The plaintiffs are Berkeley residents Sylvia McLaughlin, Janice Thomas, Hank Gehman, Anne Wagley and Lesley Emmington. (Wagley is the Daily Planet’s Arts and Calendar editor.) 

Their action constitutes the third pending legal challenge to UC Berkeley’s massive expansion plans for the coming decades. 

“We just thought this was an important thing to do because we are concerned about safety issues and the cumulative impacts of all the projects” on the community, said Sylvia McLaughlin, one of the founders of the Save the Bay organization, who sat in a threatened oak tree near Memorial Stadium in protest of the university’s expansion plans in that area of the campus. 

Terry Powell, the lab’s community relations officer, said she couldn’t comment on the action because she hadn’t seen the court papers—though she had been aware that an action was pending. 

“We believe the 2006 LRDP as certified by the Board of Regents is adequate,” said Dan Krotz of the lab’s media relations staff. 

The petition seeks a temporary restraining order and a preliminary injunction blocking the regents from taking an action to launch projects at the lab that are covered by the LRDP, and for a writ voiding the board’s certification of the EIR and approval of the planning document. 

If successful, the action would force the university to draw up and certify a new EIR responding to the challenges raised by the critics before the projects in the LRDP could move forward. 

The case has been assigned to Judge Frank Roesch, and a preliminary settlement conference has been scheduled for Oct. 31. 

The EIR approved by the regents outlines impacts of new construction planned for the 203-acre site on the scenic slopes of Strawberry Creek Canyon, including: 

• 980,000 square feet of new construction and demolition of 320,000 feet of existing buildings, making for a net increase of 660,000; 

• Addition of 375 to 500 new parking spaces, the precise number depending on whether or not the university develops alternative transportation programs; 

• About 1,000 new employees above the current 4,375. 

The lab, administered by the university under contract with the U.S. Department of Energy, is the center of a wide range of research, including projects involving two controversial forms of new technology, nanoparticles and genetically modified organisms (GMO). 


BP site included 

Both technologies will be employed in the Helios Building, where BP-funded research as well as projects funded from other sources will be seeking new forms of energy demanded by the specter of diminishing oil supplies, national security issues and the reality of global warming. 

The university has already issued a call for bids on the project, which are to be opened on Sept. 11. 

That $160 million, 160,000-square-foot Helios Building near the western end of the lab campus is one of two projects the regents have already approved under the provisions of the new LRDP and its EIR.  

The second structure is a $90.4 million, 140,000-square-foot, 300-office state-of-the art computing research center. The Computational Research & Theory Building will rise at the western end of the 203-acre LBNL a short distance from Blackberry Gate.  

Attorneys Michael Lozeau and Douglas Chermak of Alameda are representing the plaintiffs in the action filed in Alameda County Superior Court. 

Named as defendant is the UC Board of Regents, and the action seeks to overturn the board’s approval of the LRDP, their certification of the plan’s EIR and their approval of mitigations, monitoring plans and related items. 

Lozeau and his law firm specialize in environmental law, and the action cites as its ground alleged violations of the California Environmental Quality Act (CEQA). 

They are seeking a stay of the board’s decisions on the LRDP and its EIR, a temporary restraining order barring the regents from any actions to implement any site-specific projects government by the LRDP and EIR. 

They are also asking the court for a writ of mandate ordering the board to reverse its decisions on the documents, a suspension of all activities specified by them until the court decides in any changes need to be made. 

The suit also asks for an order to prepare a new EIR, and to order the university to pay the costs of the lawsuit, including attorney fees and whatever other sums the court may determine. 


Other actions 

A second set of lawsuits challenging yet another UCB regents-approved EIR is also underway in the Alameda County courts. 

That action challenges the approval of the EIR for the Southeast Campus Integrated Projects, including the four-story gym and office complex planned at the site of the oak grove along the western wall of memorial stadium. 

A hearing on that case is set for mid-September. 

Several actions have been combined into one case, with plaintiffs including the City of Berkeley, City Councilmember Dona Spring, the Panoramic Hill Association and the California Oaks Foundation. 

Wagley is also a plaintiff in a third suit challenging another university LRDP—or rather, the settlement that ended a City of Berkeley lawsuit challenging the LRDP for the main campus through 2020. 

After losing an April decision before Alameda County Superior Court Judge Jo-Lynne Q. Lee, Wagley and co-plaintiffs Dean Metzger, Jim Sharpe and Carl Friberg filed an appeal before the state Court of Appeals which is now pending.