UC Berkeley and its Department of Energy-funded laboratory in the hills overlooking the city lost a major legal battle Monday in federal court.
The lawsuit filed by the environmentalists of Save Strawberry Canyon charged that the federal agency and the university broke the National Environmental Policy Act (NEPA) by failing to conduct an environmental review of the proposed $113 million Computational Research and Theory (CRT) building, planned for the Berkeley hills adjacent to Blackberry Gate.
District Court Judge William Alsup issued the decisive ruling, backing the claims of the environmentalists and their lawyer, Michael Lozeau of Oakland.
“We won the case in total,” Lozeau said. “No ifs, ands or buts.”
Lawrence Berkeley National Laboratory (LBNL) is run by the university under contract to the Department of Energy, though not all research conducted there is funded by the federal government.
A second planned lab to house a non-federal project—the $500 million agrofuel and alternative energy research program funded by BP (formerly British Petroleum)—is moving off the hill to downtown Berkeley in the wake of a second lawsuit, though the university contends the move was not spurred by the litigation.
The lab, renamed Helios West, will be built after the demolition of the former state Department of Public Health building, which is located on a two-block site between Berkeley Way on the south, Hearst Avenue on the north, Oxford Street on the east and Shattuck Avenue on the west.
A small part of the Energy Biosciences Institute, the BP-funded program, will remain on the hill, the university announced Aug. 3.
In a statement released by the university’s public affairs department, the school announced that “A second, smaller building, devoted to the development of new photovoltaic and electrochemical solar-energy systems is envisioned to be located on UC’s LBNL site, preserving valuable synergies between lab researchers involved in nanoscale work, while ensuring efficient collaboration with researchers based on the Berkeley campus.”
The structure would encompass 21,000 usable square feet, allowing “for selection of a site that avoids or significantly reduces environmental and aesthetic impacts.”
Four separate sites on the LBNL campus are currently being evaluated, all of which are served by existing roadways and utilities.
The UC Board of Regents had approved both hillside projects in May 2008, after approving environmental impact statements for both prepared under provisions of the California Environmental Quality Act (CEQA).
Lawsuits challenging each of the projects followed within weeks, both filed by Save Strawberry Canyon (SCS), a group which includes Berkeley residents Sylvia McLaughlin, Lesley Emmington, Janice Thomas and Hank Gehman.
“We are very thankful,” Emmington said. “This happened thanks to all the people who joined SCS. And we’re very grateful for the support of Sylvia McLaughlin, who is a giant of the environmental movement.”
McLaughlin is perhaps Berkeley’s best-known environmentalists and a founder of Save the Bay, the organization which in the 1960s stopped plans to fill San Francisco Bay to create new sites for development.
“It’s pretty exciting,” McLaughlin said of the court victory. “It’s been a worrisome issue and we’ve been fortunate in having excellent legal advice.”
Emmington said SCS challenged the two projects because members felt the lab had picked sites which were environmentally sensitive, prone to earthquakes, landslides, mudslides and fires, and which merited protection for the variety of plant and animal species they house.
Leslie Sepuka, spokesperson for the UC system’s Office of the President, said the university and the Department of Energy are reviewing their options in light of Judge Alsup’s decision. “We don’t have a whole lot more information right now,” she said.
The action began with a Jan. 2, 2008, letter, not a lawsuit, sent to the LBNL’s Environmental Planning Group Coordinator asserting that the CRT building met the requirements for a mandatory review under the provisions of NEPA, a federal statute which predates California’s own version, CEQA.
The lawsuit came after the lab rejected the request.
The defendants, represented by Oakland law firm Reed Smith LLP, alleged that not only was the CEQA review adequate, but that there was no guarantee that the Department of Energy would use the structure to house its National Energy Research Scientific Computing (NERSC) Center, a key node in the agency’s cybersystem linking its national labs across the country.
“The project was, and is, not Department of Energy’s action,” the lab contended in a Feb. 29, 2009, filing with the court—that despite statements by lab officials during CEQA-mandated hearings that the building was specifically planned to house the Department of Energy facility.
In a March 18, 2009, order granting SCS’s motion for a preliminary injunction halt in any work on the building until a final decision had been reached, Judge Alsup found that SCS had raised “‘serious questions’ going to the merits of its claim that the project is a major federal action.”
While he barred the lab from turning the first spadeful of earth at the site, the jurist didn’t order cancellation of planning contracts.
He also denied the university’s request that would have forced SCS to post a bond on the grounds that such an order “would effectively deny access to judicial review” for the non-profit organization.
In his final order this week, Judge Alsup—who once clerked for U.S. Supreme Court Justice and environmentalist William O. Douglas—found that UCB’s contract with the Department of Energy “obligated the university to provide facilities like the CRT. . .including the management and operation of the NERSC Center.
The judge also agreed with Lozeau that the university’s Long Range Development plan required removal of the NERSC facility “to the main LBNL site to fully meet Department of Energy security requirements.”
The judge also found that the Department of Energy had maintained oversight of the project, provided critical input and agreed to provide cheap federal power to the facility.
“This order concludes as a matter of law that the Department of Energy’s involvement in construction of the CRT project constituted a ‘major federal action,’” triggering a statutory requirement for environmental review under NEPA.
The judge didn’t mandate a full environmental impact statement, the equivalent of an Environmental Impact Review under CEQA. That determination, he ruled, must be left to the agency.
“Given that they couldn’t even mitigate all the impacts found in the EIR, it’s a given they’ll have to do a full EIS,” Lozeau said. “This has been a really good result for Save Strawberry Canyon.”
NERSC is currently housed in a 27,000-square-foot former Wells Fargo bank building at 415 20th St. in Oakland. The facility was formally dedicated as an LBNL facility on May 24, 2001, five months after installation of its first supercomputer.