As has been discussed ad nauseum, there has been a suit filed in the Hawaii U.S. District court aiming to stop the Large Hadron Collider from starting operation, on the grounds that it might destroy the world. In a development that will shock no one (and I suspect that includes the plaintiffs) that suit has been dismissed, according to this story at MSNBC.
(Rambling thoughts and pontification on the whole affair below the fold.)
The dismissal cited the fact that the U.S. Federal courts have no jurisdiction over the operations at the LHC. While that is presumably correct (I have no legal training, so I’ll take her word for it), I’m a bit annoyed about one comment from the decision
It is clear that plaintiffs’ action reflects disagreement among scientists about the possible ramifications of the operation of the Large Hadron Collider
There isn’t disagreement. There a couple of attention-seekers making noise. They have a history of making these kinds of wild claims. It’s disturbing that they could create an impression for a federal judge that there is a genuine controversy in the scientific community about this issue. Is the narrative of “the one maverick scientist, suppressed by the establishment, warning the world of impending doom” so strong that it can creep out of the breathless doomsday press and into a legal decision?
This isn’t a minor point. While I appreciate the reaction that “the suit is gone, so we don’t have to worry any more”, the black hole scare has illuminated a real problem. In the aftermath of the recent scare, it seems worthwhile to ask ourselves questions about why this scare happened, and what, if anything, we can do to avoid something similar in the future. We can blame the press for focusing on the sensationalist scenario, but those stories would never have gotten traction if there wasn’t a perception that scientists are crazy nutcases who would, in fact, blow up the world if given the chance. One of the best points I saw raised was that each and every physicist working on the project had a family and friends and all manner of things they liked about the world. There is an absurdity to thinking that nearly ten thousand such people would sign on to a project that was so dangerous to people that they loved and cared for. And yet, this is exactly the premise that must be accepted by every journalist who writes a story about the “LHC doomsday”, and by every reader who becomes scared by it. To me, this says something devastating about how science and scientists are perceived; that is very much worth continuing to worry about.
(In other mildly-related news, Seth Zenz posted a transcript of LHC Project Leader Lyn Evans discussing the recent accident.)
On the jurisdiction issue – there are three issues that could be discussed, but the court discussed the first as the plaintiff flunked the first, so there was no need to get into the 2nd and 3rd .
On the 1st, the plaintiff saw it that that defendant is obliged to fulfill the requirements of NEPA and so the court has subject matter jurisdiction. The court ruled against that, on the basis of prior existing cases, which established 2 guidelines to determine if there is ‘major federal action’ for NEPA to be complied with. 1st guideline is what is the percentage of federal fund to the project. It is not the amount but the percentage. Here the amount is huge if compared with other projects, in state or local as opposed to international, as it is $ 531 million. But the percentage is less than ten percent as the total cost is $ 5.84 billion. Based on existing cases, where the percentage is less than ten percent, the court leans towards finding no ‘major federal action’ and so no subject matter jurisdiction. The 2nd guidepost is the extent of involvement and control of the project/program. Here the defendant signed a 1977 agreement with CERN with US having non voting observer status, and no role in the financial, policy, management decisions or operation of LHC. The plaintiffs were unable to met their burden of production to show the extent of involvement and control of the defendants in the program, and so the plaintiff also failed on this guidepost.
What is interesting is the obiter (side comment of the judge, not the reason for the decision) that, “For purposes of analyzing NEPA’s “major federal action” requirement in this case, no policy reason has been suggested for providing a different analysis solely because federal defendants contributed funding to an international entity rather than a state or local one.” Case laws develop law as they go along, by expanding on the core reason for the decision, or by limiting it or distinguishing it. Here it seems to invite a distinction could have been made but was not made, and if the plaintiffs appeal, they could tender new policy reasons to distinguish their case from other prior cases. This is seen against the context, that the 2 point rule, of % (not amount) and extent of involvement & control of federal government, is compared usually to state government action and /local government action. If there is major (as opposed to minor) federal action ( as opposed to state or local action) then, there is ‘major federal action’ and NEPA has to be complied with, and failing, the federal court has jurisdiction to hear the case to see if NEPA has been complied with. Though in the body of the decision, there are a few cases that dealt with international partners (than state or local partners) , yet the judge, made this curious dicta, “For purposes of analyzing NEPA’s “major federal action” requirement in this case, no policy reason has been suggested for providing a different analysis solely because federal defendants contributed funding to an international entity rather than a state or local one.” So this may or may not be the end of the case, depending on whether the plaintiffs appeal or not the decision of the US District court.
What was decided in this case, is that, with (a) less than 10% financial payment to the project (does not matter the amount paid out) and (b) no control over the LHC project run by CERN, and her 20 member EU , states, there is NO “major Federal action” and thus the federal govt does not have to fulfil the requirements of the National Environmental Policy Act (“NEPA”). With that, the plaintiffs failed to show there is subject matter jurisdiction, and so the court cannot hear the case and has to dismiss it, and did.
Wow, thanks for that summary. Like you said, there were three possible reasons to dismiss the case, is there any indication on whether the plaintiffs can pass the second two if an appeal on the first succeeds?
The other 2 factors on jurisdiction are standing & mootness.
Standing means a person must have a concrete stake in the outcome of a case.
3 elements of standing
(i) injury- plaintiff must show that he has been or will be directly and personally injured by the allegedly unlawful government action, which affects his rights under the Constitution or federal law.
(ii) causation- there must be a causal connection between the injury and the conduct complained of
(iii) redressability- a decision in the litigant’s favor must be capable of eliminating his grievance.
On ‘injury’ it depends on how well the physicists community are able to educate the lay people and court, of the DIFFERENCE between non zero probability in physics terms as compared to non zero probability in lay man terms, if there is such a difference as contended by physicists.
To ordinary people, a 0.00001% probability is still a small probability, that in the worst case scenario could happen, so understandably why take the risk? Thus the concern. If the paradigm of physics of low non zero probability is altogether different, and is equivalent to zero probability, then it is incumbent on physicists to inform the world at large, so that we can bridge the gap of physicists’ years of being schooled and drilled in physics paradigm of low non zero probability = zero probability for public at large.
The argument in court, on injury, on Sep 2, 2008, shows the cross communication of low zero probability is or is not same as zero probability, which has bearing on possible idea about ‘injury’ element or ‘ no injury’. If there is indeed zero probability of doomsday, then there is surely ‘NO injury’. From
http://cosmiclog.msnbc.msn.com/archive/2008/09/02/1326534.aspx – quote –
Update for 7:30 p.m. ET Sept. 6: The transcript of the Hawaii hearing, provided to me by Wagner, sheds more light on Judge Gillmor’s thinking. No. 1 is that she’s taking the case seriously. At one point in the proceedings she took Wagner to task for filing some documents after the deadline, but added this:
“I’m not going to strike your filings because, while it is difficult to make our way through all of these documents that are quasi-appropriate, the nature of the issue raised is too important for the court to strike them just as a matter of course.”
Gillmor focused on the legal process rather than the minutiae of scientific theory: Was the Energy Department required to address the doomsday scenario in an environmental impact statement? Has the statute of limitations for that requirement expired, now that the federal money is finished spending money for LHC construction (but is still supporting U.S. researchers involved in LHC experiments)? How much should the federal government be held accountable for activities in Europe? Is the United States a partner or a mere observer at CERN?
In an occasionally tart exchange with Justice Department attorney Andrew Smith, the judge discussed whether Wagner and Sancho had the proper standing to sue:
Smith: “OK, let’s assume that there was a NEPA [National Environmental Protection Act] obligation, and maybe there’s a NEPA document out there, maybe there’s not. But we don’t even need to get there. Plaintiffs’ complaint says they have to be injured by this project. Their only claim to injury…”
Gillmor: “… is that the world might blow up, and so we shouldn’t get concerned about that. You’re right. Why was I even considering it? Mr. Smith, I mean, I really find that, you know, I don’t know if there’s anything to this case, but that’s just not a great direction to be going.”
Smith: “I’m not following you. I mean, if their only claim to injury is that the world’s …”
Gillmor: “That they might die.”
Smith: “Right.”
Gillmor: “Yes.”
Smith: “So they have to show that that’s a credible injury. Is it actually going to happen? I can’t just go into federal court and say, you know, ‘the United States is participating with Israel to launch a nuclear missile, satellite that has nuclear material in it, and that nuclear material might land on my house in Albuquerque. They didn’t do NEPA. I have standing.’ That’s what this case is about.”
Gillmor: “I understand what you just said, that hypothetical, but that’s not his [Wagner’s] hypothetical. His hypothetical … I mean, and you know, his hypothetical is that the world would be made into a, you know, hard iron rock, which is different than ‘I might be an unintended casualty of something that’s happening half around the world – way around the world, but the person next door wouldn’t be.'”
End of quote-
(iii) redressability- a decision in the litigant’s favor must be capable of eliminating his grievance.
On the wording of the 1977 Agreement, this 3rd sub element cannot be satisfied as we cannot do anything about LHC. CERN and 20 EU states have control of LHC and its operation. Absent research/ knowledge on this, it is wild guess, it will be a finding of fact whether we have any ability to or influence the turn off and/or turn on LHC, and if we do not have the say or influence to turn it off, then the element of redressability is absent, and there is then no standing, even if there is ‘injury’.
Mootness- a real controversy must exist at all stages of review. If the matter has already been resolved, the case will be dismissed as moot. It might be by Spring 2009, the claims for safety reports have been met and plaintiffs are assured it is safe. I have not revisited the plaintiff’s claims to know what it is they seek, but based on bare recollection, they just wanted it deferred till they knew it was safe.
Then there is also the motion for summary judgment, based on defendants’ position that the case is time barred, that the case was filed too late, filed out of time.
I think physicists have gone so far ahead, that lay people have been left behind, and this is a cry to bring us along with you. Philosophers of old [ ancient times] knew science, but today, not just lay people have been left behind, but also philosophers or those with philosophical bend, for absent understanding of the new paradigm of physics, one cannot philosophise.
Physicists who write like
Jennifer Ouellette on Apr 16th, 2008 at 3:25 pm [ cosmic variance] , “The problem is that the evidence in this instance is pretty esoteric in nature. These are not issues that can be easily grasped by anyone lacking a PhD in particle physics or related area. For that matter, the average person’s grasp of “probability” isn’t quite up to snuff, either: a non-zero possibility for a physicist is pretty much equivalent to “none,” but John Q Public just hears “small probability.” Thus far, these are best examples I’ve heard on equivalent probabilities: about the same as …. dropping a pencil and seeing it fall straight through the floor rather than bouncing off it.”
are, in my opinion taking the right approach to bridge the gap in a good way, for now and for the future, save for “isn’t quite up to snuff” be replaced with “different paradigms” of understanding or articulation. It wouldn’t do well to tell a judge her / his understanding of probability “ isn’t quite up to snuff”. 🙂
It is interesting to notice how you practice ad hominem disqualifications, without even mentioning the name of plaintiffs, or in my case my extensive bibliography in spain, on books about time, relativity and fractal theory, and my position as the chair of the world congress of duality – the science that studies the Universe with both arrows of time, energy or entropy the only arrow physicists study and information the arrow of life… and mass-bombs. Might it be because you dont want to discuss the fact that the lhc is just a quark factory and deconfined quarks catalize thanks to their strong force the creation of novas and mass bombs, m=e/c2? As one of the plaintiffs i am even more worried after hearing the same obvious liesw for any undergraduate on physics. Cosmic rays are atoms, we have never found a deconfined quark in cosmic rays. The type of quark masses lhc will create only were seen at rhic where they formed a proto-black hole and were a perfect surprise to scientists. We will find more perfect surprises at CERN rest assured.
And we are all in the same boat.
yours sincerely
luis sancho
The less said about Sancho and Wagner’s scientific credentials, the better for their side. Wagner has a minor in physics, a bachelor’s degree in biology and a J.D. from some school of low reputation. Wagner, in the same transcript as above told the judge he was not admitted to the bar anywhere and was told to not to try to act as Sancho’s lawyer. Sancho’s CV is nowhere to be found and not in the trial record so far as I see, but Sancho is so far removed from academia, he refers to Einstein by the lesser title of Doctor, when Professor is the higher distinction. Wagner has been known to not correct people’s use of the title “Doctor” in situations where it is clear they are not referring to his J.D, and has the gall of claiming that someone who is no lawyer has no right to criticize his legal strategies.
So under what rules of evidence can their affidavits be admitted? Not as expert testimony. Not as eyewitness testimony. At the time of filing, both claimed to be residents of Hawaii. Is this true today?
But I bring you news. The Appeal was sent to the court. It has not yet appeared on the government’s court document service, PACER, yet. James Tankersley has forwarded a copy to Alan Boyle of MSNBC’s _Cosmic Blog_ and gives us this summary:
+++ In a nutshell, the plaintiffs say the federal government’s contribution of $531 million to LHC construction over more than 11 years, plus the U.S. consultative role on the project, are factors that add up to a “major federal action.”
Which makes me think they haven’t understood the appellate process — shouldn’t they have given that documentation and logic to the district court? The appellate court is more about fixing the broken logic of judges, not handing out do-overs, right?
Which gets to my final problem — given that LHCDefense.com has solicited and continues to solicit moneys for filing these lawsuits — Don’t they have a fiduciary responsibility to hire an actual lawyer?
Thanks for the update. I’d wondered what happened to them.
Wagner’s opening brief is now on PACER.
I have finished my first read-through and live-blogging.
http://sciforums.com/showthread.php?p=2165228#post2165228
The September 2008 dismissal of the US-based anti-LHC lawsuit, based on the District court’s decision that the US Federal court had no jurisdiction because the US Government’s funding of parts of the LHC did not amount to turning CERN construction and operation into a ‘“major Federal action” within the meaning of the National Environmental Policy Act. 42 U.S.C. § 4332(2)(c)’, was appealed. On August 24, 2010, the appeal was decided by a three-judge panel and unanimously affirmed on the grounds that the plaintiffs did not meet any of the three legs of standing to sue in Federal court: ‘(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’ and, importantly, because ‘CERN has never been properly served, and is not a party to this case’ there was no one involved in the case who had a finger on the on/off button. This echoes the early questions of the District court concerning proper channels, a statement from the Swiss mission to the US, and concerns of Wagner’s own process server.
Ultimately, the courts (like science) are evidence-based, and as the judges wrote: ‘Speculative fear of future harm does not constitute an injury in fact sufficient to confer standing.’ Which is what we have been telling Wagner (more or less) since before he filed.
The decision in text with a link to the PDF with nearby transcripts and audio of the appellate hearing and 2008 decision: http://sciforums.com/showthread.php?p=2609237#post2609237
-rpenner