[CPEO-MEF] NIF Lawsuit/Preliminary Injunction sought

[marylia@earthlink.net]

Dear peace and environmental colleagues: Here is an article regarding the
National Ignition Facility and the Motion for Preliminary Injunction on the
project's rebaseline, filed by NRDC and Tri-Valley CAREs. Read on for more
information...

Groups Seek Court Injunction to Bar Use of Biased NIF Review

by Christopher Paine and Marylia Kelley
from Tri-Valley CAREs' February 2001 newsletter, Citizen's Watch

Tri-Valley CAREs and the Natural Resources Defense Council (NRDC) will file
a motion in early February in the Federal Court for the District of
Columbia to bar the Department of Energy from using a biased August 2000
"Rebaseline Validation Review" of the controversial National Ignition
Facility (NIF) mega-laser.

Our motion for preliminary injunction, if granted, will prevent DOE from
employing what we believe is an illegally-prepared Review to garner more
public and Congressional support for the controversial laser fusion
project.

The DOE has relied on the tainted "Rebaseline" to assert to Congress that
it has gained control over the NIF's technical and budget problems when, in
truth, it has not. Thus, this motion is particularly important. If we
prevail, DOE could be forced to go back to "square one" and prepare a more
complete and accurate assessment of the NIF program. It has long been our
view that Congress would likely cancel NIF if it understood the program's
true budget costs, technical snafus and nuke proliferation risks.

Additionally, the motion by NRDC and Tri-Valley CAREs seeks to prevent DOE
from forming any other advisory committees concerning the NIF that do not
fully comply with the public notice, openness and balance requirements of
the Federal Advisory Committee Act (FACA).

The two groups are represented by Meyer & Glitzenstein, a Washington, D.C.
law firm with a record of successfully litigating  FACA violations
committed by DOE and other federal agencies. "The violations involved in
this case are blatant, and all citizens concerned about the manipulation of
federal agencies for private ends should welcome the action my clients are
taking," said the plaintiffs' attorney, Howard Crystal.

The motion for preliminary injunction is part of our groups' ongoing
lawsuit against DOE alleging a pattern of FACA violations in connection
with the NIF project dating back to at least 1996. (See also the Nov. 2000
Citizen's Watch.) In fact, last year's Review, chaired by DOE officials
Kathleen Carlson and Daniel Lehman, failed to meet any of FACA's
requirements. (See box, below.)

Without any public notice or participation, some 38 committee members -
including numerous paid consultants to DOE's Livermore Laboratory - met in
secret at the Lab from August 7-11, 2000 and reviewed the NIF construction
project in support of the DOE Secretary's "certification" of the new
"baseline" cost and schedule for the NIF, which DOE delivered to Congress
on September 15, 2000.

 DOE's press release of that date asserted that "an independent technical
review of the project, known as the Carlson-Lehman Review, had concluded
that the NIF project can be completed successfully using current technology
within the total cost and schedule defined in the revised baseline."

Tri-Valley CAREs and NRDC filed the lawsuit after DOE  refused to withdraw
its public characterization of the NIF Rebaseline Review as "independent,"
and to inform the Congress that the Review had not been conducted in
compliance with FACA.

Among the numerous FACA violations cited in the current motion, perhaps the
most damaging to the integrity of the public policy process was the
stacking of the Review with paid consultants and advisers to Livermore Lab
and the NIF Project - creating the very kind of biased panel that FACA was
expressly enacted to prevent.

The two groups have identified eleven members of the Rebaseline Committee
with serious financial or career conflicts of interest, "and seven of them
had individual consulting contracts with Livermore in areas directly
related to the NIF project," according to an affidavit filed by NRDC senior
researcher, Chris Paine.  For example, in one critical area of the review -
the evaluation of the NIF's large optical components - all four members of
the "Large Optics" subcommittee had "clear biases in favor of NIF," Paine
explained.

Specifically, the subcommittee chairman, Michel Andre, a senior scientist
in the French Megajoule laser project has extensive contractual relations
and engages in many joint efforts with the NIF program. Were he to be
critical of NIF, and its optics component, his own program and career would
have been adversely affected. Two other subcommittee members, John Emmett
and E. Perry Wallerstein, are former senior laser program officials at
Livermore Lab - and long-standing paid consultants to the Lab as well. The
fourth member of the subcommittee, Dr. Michelle Shinn, works at DOE's
Thomas Jefferson Laboratory in Virginia, whose Director, Dr. Hermann
Grunder, until recently chaired Livermore's NIF Programs Review Committee,
one of the bodies found most responsible for failing to exert adequate
oversight of the project.

Two other subcommittees of the Rebaseline Committee - the "Line Replaceable
Units" and "Assembly, Installation, and Commissioning" panels - were also
chaired by employees of Dr. Grunder at the time of their participation in
the NIF Rebaseline Review.  Each of these subpanels also included a member
- Drs. Robert McCrory and Steve Loucks, respectively - from the University
of Rochester's Laboratory for Laser Energetics, a major Livermore
subcontractor and scientific collaborator on the NIF Project.

Documents obtained by Tri-Valley CAREs under the California Public Records
Act reveal that McCrory and Loucks are also signatories on Livermore Lab
NIF subcontracts with the University of Rochester worth millions of
dollars. According to an affidavit filed in support of the motion by the
organization's executive director, Marylia Kelley,  the group has in its
possession 47 records, including NIF subcontracts, contract modifications,
schedules and sole-source awards, that were signed by McCrory and Loucks or
show them as managers or executors for the contracts.

McCrory has also been a paid individual consultant to the Lab Director's
Office and the Lab's NIF Program Directorate since 1996, and, according to
copies of contracts NRDC recently acquired under the California Public
Records Act, entered into a new contract to consult on the NIF only weeks
after his service on the Rebaseline Committee.

The  panel on NIF assembly also included another longtime paid private
consultant to Livermore, Dr. Damon Giovanielli, who had served only a few
months earlier as the chair of the NIF Project's own "Target Physics
Program Review Committee," which had concluded that "NIF should be
completed to its full 192-beam configuration."

According to the declarations put before the court by Paine and Kelley,
other members of the Rebaseline Committee had similar conflicts. Dr. John
Peoples and James Renfro, were under contract with the Livermore lab to
provide consulting services at the time of the Review, and Eugene
Desaulniers had been a paid consultant to the NIF project as recently as
Oct. 1998. William Barletta, of DOE's Lawrence Berkeley Lab, had previously
been tapped by NIF management to promote the project in Congressional
meetings.

In short, the DOE Rebaseline Committee's Review of NIF is the epitome of
everything that the Federal Advisory Committee Act was designed to prevent
- a hasty, biased and cooked-to-order review, conducted in secret by agency
officials and insiders who stood to benefit from the very recommendations
they were being called upon to make.

                                                FACA Facts

Congress enacted the Federal Advisory Committee Act (FACA) in 1972 to
control wasteful expenditures and open to public scrutiny the ways in which
government agencies obtain advice from private individuals. Prior to FACA ,
advisory committees had become convenient nesting places for special
interests seeking to influence federal agency actions for their own ends.

FACA applies to agencies when they establish or utilize a group that
includes at least one non-federal employee to provide collective advice or
recommendations to the agency. To legally obtain such advice, an agency
must, among other requirements: prepare a charter detailing the committee's
objectives, duties, costs, etc.; publish a notice in the Federal Register
that describes the need and purpose for the advisory committee and includes
"the agency's plan to attain fairly balanced membership"; and ensure that
the resulting committee is "balanced in terms of the points of view
represented" and is not "inappropriately influenced by the appointing
authority or any special interest."

Once the committee is formed, FACA provides public notice and participation
requirements, and specifies that the advisory committee must hold open
meetings and make documents that it reviewed or produced available to the
public.

The Department of Energy's NIF "Rebaseline Validation Review" Committee
failed to comply on all counts.

Marylia Kelley
Tri-Valley CAREs
(Communities Against a Radioactive Environment)
2582 Old First Street
Livermore, CA USA 94550

<http://www.igc.org/tvc/> - is our web site, please visit us there!

(925) 443-7148 - is our phone
(925) 443-0177 - is our fax

Working for peace, justice and a healthy environment since 1983, Tri-Valley
CAREs has been a member of the nation-wide Alliance for Nuclear
Accountability in the U.S. since 1989, and is a co-founding member of the
Abolition 2000 global network for the elimination of nuclear weapons, the
U.S. Campaign to Abolish Nuclear Weapons and the Back From the Brink
campaign to get nuclear weapons taken off hair-trigger alert.



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