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Ruling may stall opening of biolab

SJC says permit wrongly issued Facility would deal with deadly germs

Email|Print| Text size + By Stephen Smith
Globe Staff / December 14, 2007

The state's highest court delivered a victory yesterday to opponents of a controversial research laboratory being built by Boston University, upholding a lower-court decision that cast doubt on whether the project will open on time next year.

In a unanimous decision, the Supreme Judicial Court agreed that the state's environmental approval of the South End lab, granted by the Romney administration, was "arbitrary and capricious."

The SJC also concurred that BU must complete another environmental review of the project and submit it to the state for approval.

Yesterday's decision does not halt construction of the facility, already 70 percent complete, but does call into question when or whether BU will receive the permits necessary to open the centerpiece of the building: a Biosafety Level-4 lab where scientists will be able to work with the world's deadliest germs, including Ebola, plague, and anthrax.

Douglas Wilkins, a lawyer representing lab opponents, said yesterday that he believes that the SJC decision means BU "can't go forward with using this facility for a Level-4 lab because they need state permits and they can't get them. I think they're dead in the water at the moment."

In a statement, the university said: "The biosafety lab and the research it conducts will save and not endanger lives. We are confident that the additional environmental impact study will satisfy the court."

The SJC decision represents the second time in two weeks that environmental reviews of the BU project have been lambasted. An independent panel of scientists declared two weeks ago that a federal review of the lab was "not sound and credible" and failed to adequately address the consequences of lethal germs escaping.

In yesterday's decision, the justices offer a scathing assessment of the state's original environmental approval process, declaring that it failed to adequately consider alternative sites or weigh worst-case scenarios for release of viruses or bacteria. BU conducted the original environmental analysis, which was reviewed and approved by the state.

The state's 2004 approval "lacked a rational basis because the evaluation of the 'worst case' scenario was significantly incomplete," the high court justices said.

The original review analyzed the potential escape of only one pathogen, anthrax, which, while deadly, cannot be transmitted person to person.

That report, the SJC wrote, "failed to analyze the likely damage to the environment caused by the release of a contagious pathogen, whether through laboratory accident, escape of an infected research animal, theft, terrorism, or transportation mishap, which is a critical consideration in a densely populated urban area."

The project, known as the National Emerging Infectious Diseases Laboratories, is being built on Albany Street and represents a bid by BU to vault into the top tier of the nation's medical research institutions. Underwritten by federal funds, the laboratory, scheduled to open next fall, is a cornerstone in the Bush administration's campaign to prepare for potential acts of bioterrorism.

Ten Roxbury and South End residents sued in state court to block the project, prompting the July 2006 ruling by Suffolk Superior Court Judge Ralph D. Gants that led to the demand for an expanded environmental review. BU appealed that decision to the SJC.

As part of the state review, BU is required to submit an update of its own analysis of the project's safety risks. A BU spokeswoman said she was uncertain when the update will be finished.

Robert Keough, a spokesman for the state Executive Office of Energy and Environmental Affairs, described yesterday's ruling as significant.

Klare Allen, a resident who has taken to the streets and the courts to battle the proposed lab, said that the SJC ruling was a "wonderful thing."

"There really isn't anything that anybody can show that proves we are safe with this facility in our community," said Allen, a community organizer for the activist group Safety Net.

Stephen Smith can be reached at stsmith@globe.com.

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