Doomsday lawsuit dissed

The federal government today struck back in force against a lawsuit that has raised an alarm over the world's biggest particle collider. In 40 documents comprising hundreds of pages, attorneys and government officials contended that "scientifically, there is no basis for any conceivable threat" from black holes or the other theoretical horrors posed in the suit.

If the government has its way, the lawsuit would be thrown out on procedural grounds even before getting to the scientific arguments.

The civil suit, filed in Hawaii's U.S. District Court in March, contends that Europe's Large Hadron Collider might destroy the earth by creating microscopic black holes or other exotic phenomena. The plaintiffs in the case - Spanish science writer Luis Sancho and Walter Wagner, a retired nuclear physicist who lives in Hawaii - want the court to put a hold on collider operations to leave more time for safety reviews.

Sancho and Wagner's call for a go-slow approach runs counter to the prevailing scientific view that the LHC poses no globe-gobbling risk. Just last Friday, Europe's CERN nuclear research organization issued a safety report reiterating that view - and in today's filings, the U.S. Department of Energy said it accepted the findings of that report, as well as earlier reports that came to similar conclusions.

Critics have tried to poke holes in those safety reports, but one of the documents filed today says the Energy Department "is not aware of a single instance where the conclusions of those reports have been contested or rebutted in any particle physics peer-reviewed or scholarly forum."

Legal matters

As expected, the Justice Department attorneys who are representing the Energy Department as well as the National Science Foundation, laid out several lines of defense in addition to recapping CERN's scientific evidence. The procedural matters are likely to come up first when the motion to squelch the suit is considered at a hearing in September.

The federal government says the lawsuit should be thrown out because:

• It was filed after the statute of limitations ran out for contesting U.S. involvement in the LHC project. Although federal agencies have been paying out the money for years - and will continue to support experiments at the LHC - the government argues that the key dates for the statute of limitations are 1998 and 1999, when the agencies decided to award funds.
• All the U.S. funding for LHC construction has been depleted, and CERN is now fully in charge of the collider and its detectors. The government says the federal courts would thus have no jurisdiction over the operations in Europe. One of the documents filed today is a letter from CERN, saying that French and Swiss authorities have found no fault with its radiation safety procedures. Those authorities have concluded that "no safety risk exists," said Maurizio Bona, the head of CERN's safety commission.
• The plaintiffs have not demonstrated that they have standing. The government says that the claims of potential injury are "overly speculative and not credible," that any potential injury is not fairly traceable to the federal government, and that the plaintiffs have no geographical or other particular connection to the federal government's actions.
• Even if the court ordered a stop to U.S. involvement in the LHC, it would make no difference - because the experiments at the collider would simply go ahead without federally funded scientists. "There is not any effective relief that the court can order," the government's brief says.

In fact, one Energy Department official was quoted as saying that holding up U.S. involvement in the LHC experiments could do harm.

"There is a very good possibility that important scientific discoveries will be made at the LHC during very early LHC operations," Bruce Strauss, a program manager in the Energy Department's Office of High Energy Physics, said in one of the declarations filed today. "If U.S. physicists were enjoined from participating in experiments during that period, the U.S. would miss the early scientific benefits from its $531 [million] investment in the LHC." 

The government is seeking a summary judgment to drop the suit, based on the statute of limitations, or a dismissal based on the other grounds. Even if the suit goes forward, the government argues that Fermilab, one of the parties named by Sancho and Wagner, should be dropped from the list of defendants because it's not a legal entity separate from the Energy Department.

Plaintiff stays the course

"Of course we're going to oppose the motion," Wagner told me when I called him in Hawaii. He was still absorbing the text of documents, but he contested many of the government's claims - even the idea that Fermilab should be dropped from the suit.

He was intrigued by the claim that federal agencies' role in the LHC was totally finished.

"That's a strong argument, but I don't know if it's true or not," he said. "They're claiming that 'all we're going to do is sit back and watch,' and I don't believe that's true."

Wagner also took issue with CERN's latest safety report, although he said he was still reviewing it.

"With a safety study of this nature, you have to leave no stone unturned, and that hasn't yet been done. ... There are some valid concerns regarding some of the assumptions they're making." he said.

The bottom line for Wagner is that he'd like to have more time before the court's next hearing. "I don't want to be picking a date anytime soon for this," he said. "I'm going to request that they schedule a hearing at least three months down the road."

He also noted that CERN itself, which was named as a defendant in the lawsuit, wasn't off the hook. "CERN is in default," Wagner said. But does a European particle-physics lab come under federal jurisdiction? If you accept the arguments outlined in today's federal filings, the answer would likely be no.

What do you think? Feel free to add your comments and your questions below. Sometime in the next few days, I'm planning to interview one of the scientists behind CERN's safety report - and I'll try to pass along some of your questions about the Large Hadron Collider and the science behind the risk assessment.

Update for 9:30 p.m. ET June 24: I don't think I'll try posting all 40 documents (declarations, exhibits, etc.), but here's a PDF file of the federal defendants' key memorandum filed today.

Update for 1 p.m. ET June 25: The government's brief bases its motion for a summary judgment to end the suit on the idea that it's been more than six years since federal agencies awarded the funds for the LHC - and therefore the statute of limitations has run out. However, Morris Pripstein, the National Science Foundation's U.S. LHC program manager, notes that funds were awarded last year for research on the LHC. Doesn't that mean the time clock should be reset?

"Regarding the statute of limitations, the declaration by Pripstein squares with the government's arguments because we are arguing that the statute of limitations has run out on construction of the collider," Justice Department spokesman Andrew Ames told me in an e-mail. "The government's argument does not extend to the funding that NSF provided for testing and preparation of the detectors, or any funding for the upcoming research experiments."

Meanwhile, Wagner told me in a voicemail that he would contest the government's motion to dismiss the case merely by asserting that his complaint is valid - and that he'd contest the motion for summary judgment on the grounds that he saw no sworn affidavit relating to the motion. All this gets into legalistic waters that I hesitate to plumb. In the end, it'll be up to the judge in the case to sort out the procedural issues.

Update for 12:01 p.m. ET June 26: The Justice Department's Andrew Ames says the court has set a hearing on the motion to squelch the lawsuit on Sept. 2, "which means plaintiff's opposition is due on August 15 and our reply is due on August 22."