In Critical Hearing, Conservation Law Foundation Argues NIH Violated Federal Law by Ignoring Unique Risks Posed by BU Biolab

Plans to Study Lethal Pathogens in Heart of Environmental Justice Neighborhoods of South End and Roxbury Require Deeper Analysis of Specific Community Impacts, Says CLF

CONTACT:

Karen Wood, CLF, (978) 857-5389 

BOSTON, MA  April 11, 2013 – At a hearing in the U.S. District Court in Massachusetts today on the fate of the controversial BU Biolab, Conservation Law Foundation (CLF) argued that the most recent analysis conducted by the National Institutes of Health (NIH) is inadequate and does not fulfill NIH’s obligations under the law.  An adequate and fair evaluation of the risks is legally required in connection with BU’s plans to operate high-level biocontainment laboratories in Boston’s South End and Roxbury neighborhoods for the study of deadly pathogens, and the risky work planned to be undertaken at the Biolab cannot be allowed to proceed in light of the incomplete evaluation to date. CLF staff attorney Jennifer Rushlow and Attorney Arthur Kreiger from the Cambridge law firm Anderson & Kreiger argued before Chief Judge Saris that NIH violated the National Environmental Policy Act (NEPA) by issuing a decision allowing funding of the BU Biolab, formally known as the National Emerging Infectious Disease Laboratories (NEIDL), without meaningfully considering alternatives to the proposed location in a densely populated environmental justice neighborhood. CLF and its co-plaintiffs, who include individual members of the communities of the South End and Roxbury, are seeking summary judgment in the case.  Defendant NIH and defendant-intervenor Boston University are also seeking summary judgment.

The plaintiffs’ motion for summary judgment includes several arguments, focusing in part on NIH’s failure to adequately assess the impact on residents living in the environmental justice communities adjacent to the NEIDL’s current location if they were exposed to deadly pathogens being tested at the lab.

In its arguments, CLF emphasized that the more thorough analysis that should have been undertaken as required by NEPA and the Council on Environmental Quality’s (CEQ) environmental justice guidelines would have confirmed that NEIDL’s location at the nexus of Roxbury and the South End entails unique risks that should be avoided.  This is because the low-income communities of color in these environmental justice areas are more likely to live in densely populated dwellings (including public or subsidized housing) and use public transportation more frequently than the average Massachusetts community, bringing these individuals into more frequent contact with others.  These increased social contacts would likely result in the increased transmissibility of diseases, including any outbreaks related to lethal pathogens being tested at the NEIDL.

In addition, people with a lower socioeconomic status more often have health conditions that would increase their susceptibility to infection if exposed to a released pathogen or infected lab worker.Rather than reconciling these factors, CLF argued, NIH appears to have willfully ignored potential risks and impacts the NEIDL is likely to have on the affected environmental justice communities surrounding the Boston location, improperly and unlawfully minimizing the importance of information that could undermine NIH’s preference for the Boston location.

CLF argued that NIH also failed to comply with the CEQ environmental justice guidance on public participation in the development of the Risk Assessment, shortchanging community members on required participation in public hearings by holding most meetings in locations distant from the affected communities, and failing to produce a document in plain language that would be accessible to the general public.

“CLF and our co-plaintiffs have long held that this facility presents a significant risk to the communities surrounding it – risks that are amplified in low-income communities of color like the South End and Roxbury that already bear disproportionate health burdens,” stated Rushlow. “Even when sent back to the drawing board to consider these issues, NIH has taken unsavory shortcuts that favor its preferred location and conveniently disregard the facts and the communities’ concerns. It is our contention that NIH and BU should not be allowed to move forward without providing a thorough and credible analysis of the purpose, location and consequences of this facility as required by law.”

Background

Conservation Law Foundation and the individual plaintiffs’ lawsuit against the National Emerging Infectious Disease Laboratories (NEIDL), known as the BU Biolab, dates back to 2006. The lawsuit gave voice to the residents of neighboring South End and Roxbury who held deep-seated concerns about the potential for catastrophic environmental and public health consequences from exposure to the dangerous pathogens proposed to be studied at the lab, whether accidental or intentional. For more than 7 years, the defendants have delayed fulfilling the courts’ orders to provide the thorough analysis of the project’s purpose, location and consequences required by the National Environmental Policy (NEPA) and the Massachusetts Environmental Policy Acts (MEPA). Finally, in July 2012, NIH issued a “Final Supplementary Risk Assessment” which it approved in January, 2013, opening the door to the funding and authority necessary to operate the most dangerous portions of the project. In February 2013, CLF and its co-plaintiffs filed a motion for summary judgment in U.S. District Court in Massachusetts, alleging that the defendants had still not satisfied the requirements under NEPA to adequately assess the project’s purpose, location or consequences.

Conservation Law Foundation (CLF) protects New England’s environment for the benefit of all people. Using the law, science and the market, CLF creates solutions that preserve natural resources, build healthy communities, and sustain a vibrant economy region-wide. Founded in 1966, CLF is a nonprofit, member-supported organization with offices in Maine, Massachusetts, New Hampshire, Rhode Island and Vermont.

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