SJC agrees that certification of BU’s scary-virus biolab was “arbitrary and capricious”

(Welcome to BMG, Jeff!  I edited the title to avoid confusion as to whether this post constitutes the BMG Kiss Of Death™.  It doesn't -- we look forward to a vigorous debate among all the candidates for this seat. - promoted by David)

A big win today for opponents of Boston University’s planned level 4 biolab in the South End.  I only have a couple of minutes right now and haven’t yet read the opinion in detail — will try to do so later this afternoon.  Here’s the full opinion.  And here’s the bottom line:

In the present case, we consider the planned development by University Associates Limited Partnership (University Associates)(3) of a project known as BioSquare Phase II, a biomedical research complex in the South End neighborhood of Boston, which will include the National Emerging Infectious Diseases Laboratory (Biolab). This laboratory will be a Biosafety Level 4 facility,(4) requiring the highest level of security, where medical research will be conducted on the most dangerous diseases and toxins, including, but not limited to, the Ebola virus, smallpox, anthrax, and botulism.(5) The plaintiff residents of Boston commenced an action in the Superior Court pursuant to G. L. c. 214, § 7A; G. L. c. 30, § 61; and G. L. c. 231A, challenging the adequacy of the environmental reviews of BioSquare Phase II pursuant to the Massachusetts Environmental Policy Act (MEPA), G. L. c. 30, §§ 61-62H, and the regulations promulgated thereunder, 301 Code Mass. Regs. §§ 11.00 (1998). In a thorough and well-reasoned memorandum of decision on the plaintiffs’ motion for judgment on the pleadings, the judge concluded, as to Count II of the amended complaint, that the November 15, 2004, certification by the Secretary of the Executive Office of Environmental Affairs (Secretary) that the final environmental impact report (EIR) submitted by University Associates adequately and properly complied with MEPA was arbitrary and capricious. Accordingly, the judge vacated the Secretary’s certification of the final EIR and remanded the matter to the Secretary for further administrative action.(6) University Associates, the trustees of Boston University, Boston Medical Center Corporation (BMC), and the Boston Redevelopment Authority (BRA) (collectively, the defendants) filed a petition, pursuant to G. L. c. 231, § 118, first par., for interlocutory relief from the judge’s order. See note 2, supra. A single justice of the Appeals Court granted the petition, and the case was transferred from the Appeals Court on our own motion. For the reasons that follow, we now affirm.(7)

Translation: “the trial court judge decided that the state did a lousy job in its environmental review.  We agree.”

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15 Comments . Leave a comment below.
  1. BANANA:

    Build Absolutely Nothing Anything Near Anyone...

  2. I have to admit that...

    ...I am not particularly interested in the legal merits of this case, but...

    ...Smallpox?  That virus has been pretty much eliminated from the world (thank Jupiter), except for two labs in the US and Europe which are probably under lock-and-key, with guards who are under orders to shoot.  Where would BU get smallpox viruses to study?

    I have to admit that I am highly suspicious of an entity calling itself "University Associates Limited Partnership."  As far as I can tell it is a private entity, essentially a private corporation, not an educational entity.

    • under orders to shoot

      if you shoot someone holding a vial of small pox, causing them to drop it, has anything good been accomplished?  armed guards are only so effective.  we can only hope that if this ever happens, it is in the middle of nowhere, not in the middle of a crowded city.

      • I'm only being half-facetious, but...

        ...nuclear bomb blasts pretty much laid to waste everything in Hiroshima and Nagasaci at the end of WWII in the Pacific.

        If BU wants to study virii like smallpox, they should set up a ship and send it in the middle of an ocean and do it there.  You may believe that I am being facetious, but I can clue you, I am not.

    • Small pox is pretty scary for anyone less than 45-50 YOA and they haven't been in the service.

      They stopped smallpox immunizations in the sixties at some point. Just as an FYI---CDC speculates that with a coordinated (surreptious) smallpox attack, one third of the US population would be dead within five months. Interesting.

      There are pathogens out there far more frightening than smallpox. The Russians have been toying with virus mutaions for quite some time.

  3. Victory for Common Sense

    This decision by the SJC is a victory for common sense.

    Although the case is being sent back for further review, the ruling by the Superior Court judge vacating the Environmental Impact Report, effectively means the process review process must start over.

    The encouraging result of this decision is that it should effectively put an end to this ill advised project.

    If this development project were to continue and the merits again were put before the SJC, the developers will have to deal with the "risks posed by the potential release of a contagious disease from the Biolab, which could cause catastrophic harm".  The court went on to say that other locations must be considered for the Biolab.

    Additionally, the SJC stated, "Given that the nature of a Biosafety Level 4 facility is to conduct research on highly virulent and infectious pathogens, and given that the Biolab will be located in a densely populated urban area, the likelihood that the release of such a pathogen will cause damage to the environment is extraordinarily high. The fact that University Associates will take all necessary precautions to minimize the chances of a release at the Biolab does not diminish the potential for catastrophic environmental damage if such a release does occur."

    Although the decision is cloaked in legal procedures and statutory details, the message from the SJC is loud and clear.  This is the wrong project in the wrong place.  I agree.  

    Ed O'Reilly Democrat for the U.S. Senate from, and for, Massachusetts  

    • If $quot;wrong$quot; then what???

      What, pray tell, is the "right" place for this?  Another state and the concurrent loss of more high-tech jobs?  A greenfield suburban development off 495... and thus more traffic, loss of open space, further population dispersion, the fewer opportunities for city jobs?

      • Carlisle, I think opponentw would argue

        Maybe Dover or Wellesley.

      • you are concerned about jobs?

        what is the basis for your prioritizing some high-tech jobs over the safety of greater boston?  

      • Where is the right place?

        How about Tyngsborough or Peterborough, NH, which were the two alternate sites "allegedly" considered? What about a decommissioned military base that has miles of buffer zone between the lab and the community? The Level 4 lab in Maryland is on a former military base, and it is my understanding the community outside a former military base in New York was interested. Is public safety more important than commute time of some researchers? YES!!!!

      • Somewhere other than a busy downtown street...

        There are plenty of places within ten miles of downtown that would much safer than the chosen location. Not that many people will work at this facility, so traffic concerns are totally bogus given all of the other office development going on around Boston.

    • Ed's right. Send all of our Bio work to India. They have a vast pool of biologic technicians, they are cost effective, and if something gets out, Indians die, not Americans

      We need more politicians like this.

      Jesus Christ, If any highly contagious virion escapes from a lab anywhere on the planet there will be a big problem for everyone. More so if it was in USA. Ya think that it will make any difference if this edifice is in Utah or Cape Cod?

      Ya, it will make a difference. About ten days!

  4. No Biolab!

    Put the biolab on beacon hill and see how far it gets politically!  

    Even Clinton was agaisnt putting a simlar level 4 lab near NYC because of safety concerns. Why is it not safe there but safe here?

  5. Will this change Menino's mind?

    Yesterday, the Herald reported that Menino said the lab is going to go forward, despite the scalding independant scientific review saying that BU and the NIH have done a terrible job. Will this change Menino's mind? No chance in hell. Damn the facts, damn the risks, full speed ahead.

    • Almost certainly won't change his mind,

      but it'll slow things down all the same.  Not much he can do about a court ruling on a state-level review.

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Wed 22 Mar 8:14 PM