Collider court case finally closed

An amateur photographer takes a picture of elements of the Large Hadron Collider during this month's Particle Physics Photowalk at Europe's CERN research center. The LHC has weathered technical glitches as well as legal challenges.
An amateur photographer takes a picture of elements of the Large Hadron Collider during this month's Particle Physics Photowalk at Europe's CERN research center. The LHC has weathered technical glitches as well as legal challenges.Salvatore Di Nolfi / AP file

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By Alan Boyle, Science Editor, NBC News

It's taken almost two and a half years, but last week a federal appeals court shut down a challenge to Europe's Large Hadron Collider that was based on claims it could destroy the world.

The original lawsuit, filed in March 2008 by retired nuclear safety officer Walter Wagner and Spanish journalist Luis Sancho, was thrown out of federal court in Hawaii that September, basically on jurisdictional grounds. However, the plaintiffs kept the case alive by appealing to the Ninth Circuit Court of Appeals in San Francisco. Wagner and Sancho said the initial court ruling neglected to take full account of their concern that the LHC could create globe-gobbling black holes, strangelets or other exotic and catastrophic phenomena.

During the appeals process, a trio of physicists — including Harvard's Richard Wilson as well as Nobel laureates Sheldon Glashow and Frank Wilczek — filed a friend-of-the-court brief pointing out that the doomsday scenarios suggested by Wagner and Sancho had no realistic chance of occurring. That echoed earlier findings about the LHC's safety. But in the end, a three-judge panel rejected the appeal for legal rather than scientific reasons.

Here's the text of the Aug. 24 memorandum, which is also available from the court as a PDF file:

"Walter L. Wagner ('Wagner') appeals the district court's dismissal of his claim against the United States Department of Energy, the National Science Foundation (collectively, 'the U.S. government'), and others. The parties are familiar with the facts of this case, which we repeat here only to the extent necessary to explain our decision. We have jurisdiction under 28 U.S.C. § 1291, and we affirm."This court can affirm on any ground supported by the record. Cook v. AVI Casino Enters., Inc., 548 F.3d 718, 722 (9th Cir. 2008). We review questions of standing de novo, Mayfield v. United States, 599 F.3d 964, 970 (9th Cir. 2010), and factual findings for clear error. Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009). To establish standing, Wagner must demonstrate (1) an 'injury in fact,' (2) 'a causal connection between the injury and the conduct complained of' that is not attributable to 'the independent action of some third party not before the court,' and (3) a likelihood that a favorable decision will redress the injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)."Wagner cannot demonstrate that he has standing. A plaintiff alleging a procedural injury, such as Wagner, must still establish injury in fact. See Laub v. U.S. Dep’t. of Interior, 342 F.3d 1080, 1086 (9th Cir. 2003). Injury in fact requires some 'credible threat of harm.' Cent. Delta Water Agency v. United States, 306 F.3d 938, 950 (9th Cir. 2002). At most, Wagner has alleged that experiments at the Large Hadron Collider (the 'Collider') have 'potential adverse consequences.' Speculative fear of future harm does not constitute an injury in fact sufficient to confer standing. Mayfield, 599 F.3d at 970."Even if Wagner has demonstrated injury in fact, he nevertheless fails to satisfy the causality or redressability prongs set out in Lujan. The European Center for Nuclear Research ('CERN') proposed and constructed the Collider, albeit with some U.S. government support. The U.S. government enjoys only observer status on the CERN council, and has no control over CERN or its operations. Accordingly, the alleged injury, destruction of the earth, is in no way attributable to the U.S. government's failure to draft an environmental impact statement."CERN maintains total ownership, management, and operational control of the Collider. CERN has never been properly served, and is not a party to this case. Even if this court were to render a decision in Wagner’s favor, such a decision would have no impact on CERN or Collider operations, and would not afford Wagner the relief he seeks."AFFIRMED: Because our determination of standing is not dependent on the identity of the Appellant, we need not address whether Luis Sancho is a party to this appeal."

My efforts to contact Wagner by phone and e-mail were unsuccessful today, but if I hear anything I'll pass it along. Because Wagner has been representing himself in court, the costs of continuing the legal battle have so far been relatively low.

A report about the ruling on Homeland Security News Wire notes that a similar court case in Germany was thrown out in March because the woman behind the challenge could not "give a coherent account of how her fears would come about."

On the French-Swiss border, meanwhile, the Large Hadron Collider's intensity was kicked up to a new level last week, and that trend is expected to continue over the coming months. The current plan calls for the LHC to be in operation through 2011 at half-power. After a yearlong maintenance period, the power will be ramped up to the maximum level of 7 trillion electron volts per beam in 2013.

To find out more about the LHC and the discoveries it could make, check out our special report on the "Big Bang Machine."

Update for 11:56 p.m. ET Sept. 1: Walter Wagner called me back and said that he intends to seek a review of the three-judge panel's ruling by the entire Ninth Circuit Court of Appeals. The way he figures it, he has about five weeks to file his request. (The rules provide for a 45-day period after the ruling was issued, which in this case was on Aug. 24.) Thus, it might be a little premature to say the case is completely closed.

Tip o' the Log to David Harris at Symmetry Breaking, and also to RPenner, who provided play-by-play from the appeals court hearing in June. (The court also has provided audio of the hearing.)Join the Cosmic Log corps by signing up as my Facebook friend or hooking up on Twitter. And if you really want to be friendly, ask me about "The Case for Pluto."