Judge Halts Construction, Site Work at LBNL Lab Site

By Richard Brenneman
Friday March 20, 2009 - 01:13:00 PM

A federal judge has ordered a halt to work on a $113 million computer lab at Lawrence Berkeley National Lab (LBNL), saying UC officials may have tried to evade federal environmental law. 

U.S. District Judge William H. Alsup handed down a 20-page preliminary injunction Wednesday, siding with Save Strawberry Canyon, a Berkeley citizen’s group formed to challenge the university’s building plans along the canyon. 

His action halts any work at the site of the proposed Computational Research and Theory (CRT) building until after a September trial in his San Francisco courtroom. 

“This order enjoins defendants from entering any contract or undertaking any action, without prior approval of the court, that will disturb the land itself pending a determination of the merits,” the judge wrote in his order. 

Alsup said the university could continue with its planning work on the building, which was approved last May by the UC Board of Regents. 

Michael Lozeau, the environmental attorney who represents the citizen group, said he was pleased with the court’s ruling, and for recognizing that “the university was playing it both ways.” 

The key issue for the federal judge was whether or not the university was attempting to skirt the National Environmental Protection Act by conducting only a state-level environmental impact review under the California Environmental Quality Act (CEQA). 

Alsup’s ruling parses the complex relationship between the university and the U.S. Department of Energy (DOE), a relationship certain to grow more complex with the appointment of Steven Chu as head of the federal agency. Chu headed LBNL before becoming the first science Nobel Laureate to lead the Energy Department,  

Alsup ruled that despite the claims of UC Berkeley officials and the DOE that the lab is “a UC-owned building on UC-owned land,” Lozeau’s clients have “created a substantial question regarding whether the federal government exercised decision-making authority and control over the project.” 

While university and lab officials repeatedly told the public that the building was being built to house the DOE’s National Energy Research Scientific Computing Center (NERSC), UC attorney John Lynn Smith argued that the supercomputer facility was only a “prospective tenant,” since no agreement committed the feds to locate the facility there. 

The center is currently housed in a leased former bank building in downtown Oakland. 

Alsup ruled that “the record indicates one of the university’s primary purposes for the CRT project was to house DOE’s computation centers,” with the building “designed with consideration of the needs of DOE computer systems,” and with DOE involvement and ongoing “great interest” in the facility. 

“Considering all of this evidence, this order finds that [Save Strawberry Canyon] has identified ‘serious questions’ of whether or not the CRT is a federal action.” Alsup wrote. 

He also rejected a defense argument which contended that National Environmental Protection Act review didn’t matter, since CEQA “is NEPA with teeth.” 

If the project is determined to serve federal needs, NEPA review would be required, since the law was passed by Congress to ensure the federal government would “‘have available and carefully consider’ the information that Congress wished for it to consider in order to appropriately plan and coordinate federal policy,” Alsup wrote. 

Smith argued that the suit was simply a third attempt by the plaintiffs “to force the university to construct the CRT facility far away from LBNL and the UCB campus at UC’s Richmond Field Station.” 

Named as defendants in the action for the DOE were the secretary of Energy, LBNL’s director and the members of the Board of Regents. 

Lawrence Berkeley National Lab is one of three national labs UC Berkeley operates under contract with the DOE, and it receives 77 percent of its funding from the DOE, with another eight percent from the National Institutes of Health, the judge wrote. 

The CRT is part of a major construction program at the lab, with another project also the subject of a lawsuit—the so-called Helios Building, which would house research conducted under the $500 million synthetic-fuels research project funded by British oil giant BP. 

Save Strawberry Canyon has filed a parallel action against the Helios project, represented in that case by Stephan Volker. 

The group includes several well-known Berkeley activists, including Save the Bay co-founder Sylvia McLaughlin, Lesley Emmington, Janice Thomas and former Mayor Shirley Dean.