Sancho v. U.S. Dept. of Energy

• Decision Date: 26 September 2008
• Docket Number: Civil No. 08-00136 HG KSC.
• Citation: 578 F.Supp.2d 1258
• Parties: Luis SANCHO, Walter L. Wagner, Plaintiffs, v. U.S. DEPARTMENT OF ENERGY, Fermilab, Center for Nuclear Energy Research (CERN), National Science Foundation, Doe Entities 1-100, Defendants.
• Court: U.S. District Court — District of Hawaii

578 F.Supp.2d 1258

Luis SANCHO, Walter L. Wagner, Plaintiffs, v. U.S. DEPARTMENT OF ENERGY, Fermilab, Center for Nuclear Energy Research (CERN), National Science Foundation, Doe Entities 1-100, Defendants.

Civil No. 08-00136 HG KSC.

United States District Court, D. Hawai`i.

September 26, 2008.

Luis Sancho, Honomu, HI, pro se.

Walter L. Wagner, Provo, UT, pro se.

Andrew A. Smith, United States Department of Justice, Albuquerque, NM, Derrick K. Watson, Office of the United States Attorney, Robert M. Kohn, Price Okamoto Himeno & Lum, Honolulu, HI, Martin S. Kaufman, Atlantic Legal Foundation, Larchmont, NY, for Defendants.

ORDER GRANTING FEDERAL DEFENDANTS' MOTION TO DISMISS

HELEN GILLMOR, Chief Judge.

Two private individuals sue to enjoin several federal agencies and a European nuclear energy research center from operating the Large Hadron Collider ("LHC"), a subatomic particle accelerator straddling the French-Swiss border near Geneva, Switzerland. The LHC is designed to collide high-energy beams of subatomic particles into one another for purposes of scientific research. Plaintiffs allege that operation of the LHC could potentially trigger various irreversible processes that could lead to the destruction of the Earth. Plaintiffs' implicit argument is that this Court has jurisdiction to enjoin the operation of the LHC because the Defendants are obligated to fulfill the requirements stated within the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4347, before commencing operation of the LHC.

The United States Defendants move for dismissal for lack of subject matter jurisdiction or for summary judgment on other grounds. Defendants' Motion to Dismiss (Doc. 14) is GRANTED.

PROCEDURAL HISTORY

On March 21, 2008, Plaintiffs Luis Sancho and Walter L. Wagner ("Plaintiffs") filed a complaint. (Doc. 1, "Complaint".)

On June 24, 2008, Federal Defendants United States Department of Energy, Fermilab, and National Science Foundation ("Defendants") filed a Combined Motion to Dismiss and Motion for Summary Judgment. (Doc. 14, "Motion".) Defendants also filed four declarations by Denis Kovar, Joanna Livengood, Morris Pripstein, and Bruce Strauss, in support of the Motion. (Docs. 17-20.)

On July 1, 2008, Plaintiffs filed a motion entitled, "Request for Entry of Default Against Defendant CERN [Center for Nuclear Energy Research]." (Doc. 24, "Request".) Plaintiffs also filed a declaration by Walter Wagner in support of the Request. (Doc. 25.)

On August 5, 2008, Plaintiffs filed a proposed Judgment by Default Against Defendant CERN. (Doc. 28.)

On August 5, 2008, Plaintiffs filed a motion entitled, "Motion for Permanent Injunction Against Defaulting Defendant CERN." (Doc. 29.) Plaintiffs also filed an affidavit by Walter Wagner in support of the Motion for Permanent Injunction. (Doc. 30.)

On August 14, 2008, a letter was received from Alexander Wittwer, the Charge d'Affaires at the Embassy of Switzerland in the United States of America, stating that CERN disputes jurisdiction based on the method of delivery of Plaintiffs' Complaint. (Doc. 58.)

On August 22, 2008, seven days after it was due (Local Rule 7.4), Plaintiffs filed an Opposition to Defendants' Combined Motion to Dismiss and for Summary Judgment (Doc. 49, "Opposition") and affidavits by Plaintiffs Walter Wagner and Luis Sancho in support of the Opposition. (Docs. 54-55.)

On August 22, 2008, the same date Plaintiffs filed their Opposition, Defendants' filed a timely Reply in Support of Combined Motion to Dismiss and Motion for Summary Judgment. (Doc. 48, "Reply".)

On August 26, 2008, Plaintiffs filed a Rebuttal to Federal Defendant' Reply in Support of Combined Motion to Dismiss and for Summary Judgment (Doc. 52, "Rebuttal") without asking leave from the Court as required by Local Rule 7.4.

On August 29, 2008, Defendants filed a Declaration of Bruce P. Strauss in Response to the August 5, 2008 Affidavit of Walter L. Wagner and In Support of Federal Defendants' June 24, 2008 Motion to Dismiss (Doc. 66) without authorization from the Court. See Local Rule 7.2(f).

On September 2, 2008, on the morning of the hearing, Plaintiffs filed an Affidavit by Walter L. Wagner in Rebuttal to the Late-Filed Affidavit of Bruce Strauss. (Doc. 67.)

The hearing on Defendants' Motion occurred on September 2, 2008. At the hearing, the Court orally granted the Motion to Dismiss as to Plaintiffs' claims that the United States was somehow bound by international law or foreign agreements named by Plaintiffs. The Plaintiffs' claims were based on the European Council's "Precautionary Principle" and the European Commission's "Science and Society Action Plan." Neither document has been incorporated into domestic law, by international treaty or otherwise. Defendants' Motion to Dismiss (Doc. 14), filed on June 24, 2008, was orally granted as to the section of the motion entitled, "The United States is Immune from Suit Regarding Documents Issued by the European Commission and Council for the European Union." (Defendants' Motion, Doc. 14, Part I(C).)

At the hearing, the Court also denied Federal Defendants' Ex Parte Application to Strike Plaintiffs' Untimely Responses to Federal Defendants' Motion to Dismiss or, in the Alternative, for an Opportunity to Reply. (Doc. 56.)

The Motion for Leave to File Brief Amicus Curiae (Doc. 37) and Motion for Leave to File Amended Brief Amicus Curiae (Doc. 44) were both denied. The filings were not supported by affidavits or other evidence that demonstrated that the alleged amici were involved in the filing. Both the amicus curiae brief and the amended amicus curiae brief were unsupported argument.

On September 19, 2008, amici curiae, Sheldon Glashow, Frank Wilczek, and Richard Wilson, filed a Motion for Permission to File Motion for Leave to Resubmit Amended Brief Amicus Curiae Filed August 21, 2008 with supporting affidavits. (Doc. 80.)

On September 24, 2008, the Court issued a Minute Order granting the Motion for Permission to File Motion for Leave to Resubmit Amended Brief Amicus Curiae Filed August 21, 2008. (Doc. 87.)

On September 25, 2008, amici curiae, Sheldon Glashow, Frank Wilczek, and Richard Wilson, filed a Motion for Leave to Resubmit Amended Brief Amicus Curiae Filed August 21, 2008. (Doc. 88.)

On September 26, 2008, the Court issued a Minute Order granting the Motion for Leave to Resubmit Amended Brief Amicus Curiae Filed August 21, 2008. The Court has considered the Amended Brief Amicus Curiae Filed August 21, 2008 in reaching its decision.

BACKGROUND

The Complaint alleges that Plaintiff Luis Sancho is a citizen of Spain, with legal residence in the State of Hawaii. (Compl. at ¶ 1.) Plaintiff Walter L. Wagner alleges he is a citizen and resident of the State of Hawaii. (Id. at ¶ 2.)

The Defendants include two federal agencies ("Federal Defendants"), the United States Department of Energy ("DOE") and the National Science Foundation ("NSF"), a United States government agency responsible for the promotion of scientific research. (Id. at ¶¶ 3, 5.)

Plaintiffs have also named as Defendants the Center for Nuclear Energy Research ("CERN"), an intergovernmental European agency that conducts nuclear research (Id. at ¶ 6), and Fermilab (Id. at ¶ 4). The parties dispute whether Fermilab has been appropriately named as a Defendant. Federal Defendants state that Fermilab is a collection of federal buildings, facilities, and equipment whollyowned by the United States Department of Energy, not a separate legal entity. (Federal Defendants' Livengood Decl. ¶ 5.)

The Large Hadron Collider is a particle accelerator that straddles the French-Swiss border near Geneva, Switzerland. (Federal Defendants' Strauss Decl. ¶ 6.) The LHC is comprised of a 27 kilometer ring of superconducting magnets, designed to collide high-energy beams of subatomic particles into one another. (Id.) The collision fractures the atoms into more fundamental particles that can be observed and studied for purposes of scientific research. (Compl. at ¶ 11.)

Plaintiffs allege that the collisions are unsafe and could potentially result in the destruction of the Earth. (Id. at ¶ 13.) Plaintiffs posit three separate theories regarding the outcome of the LHC particle experiments: (1) the creation of a runaway fusion reaction that would eventually convert all of Earth into a single, large `strangelet'; (2) the creation of a `micro black hole' into which the Earth would fall; and (3) the creation of a runaway reaction due to the formation of a `magnetic monopole'. (Id.) Under all of Plaintiffs' theories, the LHC particle experiments could lead to the end of all mankind. (Id.) Plaintiffs do acknowledge, however, that various competing scientific theories exist regarding the outcome of the subatomic collisions to be performed at the LHC. (Id. at ¶ 12.)

It is the Federal Defendants' position that the LHC particle experiments have been thoroughly reviewed and are completely safe. Federal Defendants' position regarding the safety of the LHC is fully stated in the Declaration of Bruce P. Strauss. (Strauss Decl. ¶ 31.) Dr. Strauss is the Program Manager in the Office of High Energy Physics, Office of Science, for the United States Department of Energy. (Id. at ¶ 1.) In support of Federal Defendants' position, Dr. Strauss attaches to his Declaration the "Review of the Safety of LHC Collisions," a report authored by CERN's LHC Safety Assessment Group. (Strauss Decl. ¶ 31 and Attachment 15.) The "Review of the Safety of LHC Collisions" states as its conclusion: "There is no basis for any concerns about the consequences of new particles or forms of matter that could possibly be produced by the LHC." (Id.)

The nature of the United States' involvement in the Large Hadron Collider is not agreed upon by the parties. Plaintiffs allege that Federal Defendants and Defendant CERN engaged in a "partnership relationship" to construct the LHC. (Compl. at ¶ 8.) Federal Defendants do not...