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Federal Litigation. David Lankford, JD Senior Attorney, HHS Office of the General Counsel Public Health Division, NIH Branch. Three Legal Actions Filed. Three lawsuits have been filed related to funding/construction of NEIDL: Federal NEPA lawsuit;
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Federal Litigation David Lankford, JD Senior Attorney, HHS Office of the General Counsel Public Health Division, NIH Branch
Three Legal Actions Filed Three lawsuits have been filed related to funding/construction of NEIDL: • Federal NEPA lawsuit; • Complaint with the DHHS Office of Civil Rights (OCR), with subsequent lawsuit; • State lawsuit under the Massachusetts Environmental Protection Act (MEPA).
NEPA Lawsuit May 16, 2006: • Several Boston residents and two public interest groups, the Conservation Law Foundation and the Lawyers’ Committee for Civil Rights, sued the NIH under NEPA. • BU joined the lawsuit as a co-defendant.
NEPA Lawsuit Plaintiffs asked the court to: 1) Declare that NIH violated NEPA, and 2) Stop the NIH’s funding of the NEIDL.
NEPA Lawsuit • Plaintiffs allege that NIH failed to properly assess potential risks of the NEIDL on the public health and failed to consider alternative locations, including less populated areas. • The crux of the plaintiffs’ claims is that infectious agents will be released from the NEIDL and harm the community. • The focus of the NEPA lawsuit is BSL-4 agents in the NEIDL; plaintiffs have tried to broaden scope to BSL-3 and below, but the court has limited the case to BSL-4 agents.
NEPA Lawsuit • Plaintiffs have also raised an Environmental Justice claim, arguing that the NEIDL’s location will have a disproportionate impact on low-income and minority populations.
NEPA Lawsuit September 6, 2006: • At a Federal court hearing, the judge asked NIH to further assess the possible impacts of release of BSL-4 agents, particularly Ebola, into the community. • NIH agreed to provide the court with a supplementary risk assessment. • The court deferred ruling on halting NIH’s funding of the NEIDL, pending completion of this supplemental review, allowing construction to continue.
NEPA Lawsuit August 23, 2007: • NIH released its draft supplementary risk assessments for public comment. December 20, 2007: • After receiving comments on the draft supplementary risk assessments, including the NRC report, NIH informed the court that it would perform additional analyses of the potential risks of the NEIDL.
NEPA Lawsuit • Although construction on the NEIDL has continued, BSL-4 research will not be conducted until the court decides whether the NIH has complied with NEPA. • If the court determines that NIH did not comply with NEPA, the court could deny the conduct of BSL-4 research in the NEIDL pending further environmental review by the NIH. • Although much less likely, the court could also enjoin use of the rest of the NEIDL.
Office of Civil Rights Complaint July 11, 2005: • Several Boston residents filed an administrative complaint with the DHHS OCR, alleging that Boston University’s decision to build the NEIDL at its current location was discriminatory under Title VI of the Civil Rights Act of 1964. • The complainants argued that release of pathogens from the NEIDL would have a disproportionate impact on minority residents. • OCR postponed investigating the complaint pending completion of the NIH’s supplementary assessments and NEPA lawsuit, reasoning that the NIH’s analyses of the risks posed by the NEIDL were relevant to the discrimination complaint. • The complainants filed a lawsuit to compel OCR to investigate the complaint before NIH completed its investigation, but the Federal court has agreed with OCR’s position that the NIH’s supplementary review is relevant to the discrimination complaint and that OCR’s investigation can await the completion of the NIH’s supplementary review.
