PROJECT BIOSHIELD PRISONER'S DILEMMA: AN IMPETUS FOR THE MODERNIZATION OF PROGRAMMATIC ENVIRONMENTAL IMPACT STATEMENTS, THE

Boston College Environmental Affairs Law Review, 2006 by Shea, David M

Abstract:

Passage of the Project BioShield Act of 2004 evinced an executive and legislative desire to increase government-controlled laboratory space dedicated to studying dangerous pathogens. Pursuant to this Act, the National Institutes of Health (NIH) awarded generous construction grants to research universities nationwide. Unsurprisingly, siting disputes have subsequently arisen over the placement of several of these proposed laboratories in densely populated areas. Because NIH chose not to complete a programmatic environmental impact statement (PEIS), the potential litigation endgames are suboptimal. This fuels a larger debate over the relevance of PEISs in general in light of their recognized value but sporadic invocation. This Note uses a game theory model to argue that initial completion of a thorough PEIS would have led NIH to propose laboratories in areas with comparatively lower population densities. This preferable but currently unattainable outcome demonstrates the need for reform. To that end, this Note concludes with recommendations for legislative, executive, and judicial modernization of PEISs.

The primary hazards to personnel working with Biosafety Level 4 agents are respiratory exposure to infectious aerosols, mucous membrane or broken skin exposure to infectious droplets, and autoinoculation. All manipulations of potentially infectious diagnostic materials, isolates, and naturally or experimentally infected animals, pose a high risk of exposure and infection to laboratory personnel, the community, and the environment.1

[The Rocky Mountain Laboratories] campus is located in rural western Montana, well removed from major population centers. The location of the laboratory reduces the possibility that an accidental release of a biosafety level-4 organism would lead to a major public health disaster.2

INTRODUCTION

Biosafety level 4 (BSIj-4) organisms, including Ebola and several other African, Asian, and South American viral hemorrhagic fevers, are those determined by the Department of Health and Human Services to be "[d]angerous/exotic agents which pose high risk of life-threatening disease, aerosol-transmitted lab infections; or related agents with unknown risk of transmission."3 While these pathogens cause the most dangerous diseases known to man,4 the amount of laboratory space devoted to their study is comparatively small.5 In the wake of the September 2001 terrorist attacks and the October 2001 anthrax letter scares, President George W. Bush announced a major initiative-Project BioShield-to swiftly fund additional BSL-3 and BSL-4 (BSL-3/4) laboratory space across the country.6

In September 2003, Boston University Medical Center (BUMC) received $120 million toward the construction and operation of a BSL-3/4 research facility, after being selected as one of nine institutions to be awarded generous federal grants under Project BioShield.7 Many local politicians supported the proposed project,8 based partly on the government's assurance that the risk involved is "negligible."9

Despite this self-serving administrative assurance, recent media coverage has documented numerous scenarios involving non-negligible amounts of risk at existing BSL-3/4 laboratories, including: the potential spread of pathogens due to power loss;10 the release of pathogens inside a laboratory;11 the misplacement of pathogens;12 the release of pathogens during transit;13 and the accidental transmission of pathogens to laboratory workers.14 One can easily conceive of a disaster scenario in downtown Boston rivaling or surpassing the 2002 SARS epidemic in Southeast Asia.15 This Note does not take the radical view that accidents of this nature are certain to occur if the proposed BUMC laboratory is built; rather, it assumes that the siting of a BSL-3/4 laboratory in such a densely populated area would, contrary to the government's assertion, necessarily constitute some nontrivial amount of risk.16

Two local groups-Alternatives for Community & Environment (ACE)17 and Safety Net18-share this assumption, including it among their claims in various response letters written during public comment periods throughout the federal and state environmental review processes.19 As of the date of publication, these groups were involved in an ongoing lawsuit challenging the final state environmental certification.20 This Note foregoes analysis of the local matters and focuses instead on the legal challenges surrounding the federal environmental certification once it becomes final, because these findings will be more relevant to other proposed laboratory sites.21 In addition, if the state litigation were to block the proposed BUMC BSL-3/4 laboratory, the analysis in this Note will remain relevant should the federal government choose to redirect its munificence.

While the local groups' missives offer a potential road map for future Project BioShield litigation, they also raise pertinent questions about the future of environmental review in general. In particular, one of the environmental plaintiffs' central claims-that the government failed to complete a programmatic environmental impact statement (PEIS)22 for Project BioShield as a whole before choosing specific locations for the proposed BSL-3/4 laboratories23-is a frequent point of contention in environmental litigation.24 Indeed, uncertainties as to how and when to complete PEISs have recently led one government task force to call for their modernization, as some agencies "struggle[d]" with this "valuable decisionmaking tool[]."25