Both Sides Claim Victory in Lab Long Range Plan Lawsuit

By Richard Brenneman
Thursday September 18, 2008 - 09:27:00 AM

Both sides were claiming victory in a legal battle over Lawrence Berkeley National Laboratory’s long range plans for building 980,000 square feet of new construction by 2026. 

But while an Alameda County Superior Court judge has ruled that LBNL must recirculate part of the environmental impact report for its massive expansion plans, he rejected other legal challenges to the project raised by a coalition of citizens. 

Judge Frank Roesch ruled that the university failed to provide for adequate public participation for the final review of the Long Range Development Plan environmental impact report (EIR). 

The lab held only one hearing on the document and failed to notify the public that it could comment in writing or at the hearing, “announcing with finality that ‘[t]he final EIR is now complete and will be considered for certification by the UC Regents . . .” 

The lab also failed to file a legal notice in local newspapers, another requirement. 

But the only basic difference between the draft and final EIRs was a section on the projects’ potential impacts on climate change—ironically the centerpiece of the lab’s publicity efforts and of much of the research now underway at facility, which operates under the aegis of the Department of Energy. 

Accordingly, he ruled, the lab will be required to recirculate the climate change section of the document, which lab spokesperson Dan Krotz said consists of four pages of the massive final document. 

The action was brought by Lesley Emmington, Henry M. Gehman, Sylvia McLaughlin, Janice Thomas and Daily Planet Arts and Calendar Editor Anne Wagley. 

Roesch rejected most of their claims on the ground that they had not been presented during the environmental review process, not because they were necessarily invalid. 

Among those claims were allegations that the EIR failed to: 

• Properly apply Bay Area Air Quality Management District standards for assessing air pollution impacts caused by increased employment in Berkeley and Oakland. 

• Analyze impacts from diesel exhaust and noise generated by trucks traveling to and from the lab’s hillside site. 

• Apply quantifiable standards to verify claims concerning impacts to water quality to the watersheds of Strawberry, Schoolhouse and Lincoln creeks. 

• Adequately address impacts to the habitat of the endangered Alameda whipsnake. 

“There are several issues still hanging,” said Michael Lozeau, who represented the plaintiffs, “including the fact that there will be a whole bunch of trucks spewing toxic diesel exhaust on Berkeley streets, some of them within 30 feet of residences.” 

He said no one has addressed the cumulative effects of all the construction projects on the main campus and at the lab on the hillside above. 

“Berkeley Lab is very pleased with the ruling,” said lab spokesperson Dan Krotz. “On nearly every point, the court ruled in the University of California’s favor. The court held that the lab is required to recirculate for public comment its analysis of the impact of implementation of the 2006 LRDP on climate change.” 

Asked whether the plaintiffs will appeal Judge Roesch’s decision, which was filed Sept. 5, Lesley Emmington said, “We are currently contemplating our next move.” 

In a prepared joint statement, the plaintiffs said, “The irony is that although the Long Range Development Plan includes construction of energy research facilities, the lab did not consider the global warming impact from their proposed development.”  

They also noted that just one of the projects included in the LRDP, the Helios building, which will house the BP-funded Energy Biosciences Institute, requires removal of 140 trees from the site. 

That project and another proposed building are targets of separate lawsuits filed by Oakland attorney Stephan Volker on behalf of the nonprofit Save Strawberry Canyon.