SJC sides with opponents of BU BioLab
South End News
December 20, 2007
by Lou Manzo
If Attorney Douglas Wilkins and his clients, some in their fifth year of mobilizing to stop the construction of Boston University Medical Center’s Bio-Safety Level 4 Laboratory (BioLab), haven’t popped the champagne corks just yet, it’s not because they have nothing to celebrate.
“If you remember, the SJC [Supreme Judicial Court] ruling came in the middle of a snowstorm,” Wilkins said.
On Dec. 13, the Massachusetts SJC ruled against BUMC’s appeal of a lower court’s ruling, which ordered further scrutiny of the environmental impact of the BioLab on the surrounding neighborhoods. BUMC must now complete a new environmental impact report of the BioLab, which will house some of the world’s deadliest pathogens, such as Ebola, and have it certified with the state in order to gain the necessary permits for the lab. In the meantime construction continues on the Albany Street structure, which is more than 70 percent complete. Ellen Berlin, spokesperson for BUMC, refused to speculate on what would happen to the project if it did not get approval for Level 4 research.
The ruling was three years in the making. On Nov. 15, 2004, the Executive Office of Environmental Affairs certified BUMC’s original environmental impact review. Following the certification, the Boston Redevelopment Authority (BRA) approved the project. SafetyNet, a coalition of Roxbury and South End residents fighting to stop construction, filed a state suit against the BRA and BUMC alleging that the state’s review of the EIR was inadequate. In August of 2006, Suffolk County Superior Court Judge Ralph Gants agreed—describing the certification of the EIR as “arbitrary and capricious.” This week the SJC affirmed the lower court ruling.
“I was very excited and still am very excited,” said Klare Allen, community organizer for SafetyNet and coordinator for the Stop the BioLab Coalition. “This is the highest court in the state and it pretty much reiterates what we said.”
Boston University Medical Center released a statement after the ruling.
“The biosafety lab and the research it conducts will save and not endanger lives,” the statement read. “We are confident that the additional environmental impact study will satisfy the court.”
Berlin said that BUMC began preparing a new EIR after the original lower court ruling in August of 2006. She would not comment on a timeline for the submission of a new EIR.
Bob Keogh, spokesperson for the Office of Energy and Environmental Affairs, said the ruling was significant not only because the BioLab remains under state environmental review but also because the ruling reaffirmed the power of his office in ordering environmental reviews.
“The substantive matter of law that was part of this appeal was whether the secretary [of energy and environmental affairs] had the authority to order certain kinds of review,” Keogh said. “What the SJC ruling did was uphold a broad interpretation of the secretary’s authority to order a full analysis of the environmental impact — including low probability [scenarios] but with high risk and order serious examination of alternate sites.”
If BUMC had won the case, the power of the office would have narrowed, according to Keogh.
The SJC ruling concluded current litigation concerning the Biolab at a state level, though, federal lawsuits against the project continue.
The National Institute of Health, which is funding the construction of the BioLab, is in the final stages of a court ordered supplemental risk assessment after BioLab opponents sued in federal court in May of 2006. A draft of the new NIH supplemental risk assessment concluded that the BioLab posed a negligible threat to the South End. In Nov., the National Research Council, a Washington D.C. based non-profit institution, which provides scientific policy advice to the government, deemed the new study “not sound” asserting that the supplemental report failed to identify worst case scenarios and did not properly study the risk comparison of alternate sites. The public comment period on the supplemental NIH report ended on Nov. 30. Now, NIH must finalize the supplemental report and submit it in federal court.
For BioLab opponents, fighting construction in the state courts, the ongoing federal court machinations played second fiddle to this week’s SJC ruling.
“We won,” Wilkins said. “I think the court applied the law in a straightforward way. The lower court’s decision was well reasoned and so was the SJC’s decision.”