by: Ashley Tan, Associate Editor, MTTLR
I. Suing to Save the World
Used under a Creative Commons BY-NC-ND 2.0 license.
Has the Large Hadron Collider destroyed the world yet? A tongue-in-cheek website suggests not.1 The European Organization for Nuclear Research (CERN), which is responsible for constructing and operating the Large Hadron Collider (LHC), insists that fears about LHC-generated catastrophes are wholly without scientific foundation.2 However, a group called the Citizens Against The Large Hadron Collider, established by nuclear physicist and former U.S. nuclear safety officer Walter L. Wagner3, not only argues that the LHC poses a significant danger of destroying the Earth, but has gone so far as to file in a U.S. district court in Hawaii to enjoin the LHC from proceeding to full operating capacity.4 Another group, led by German chemist and university professor Otto Rössler, tried to file a similar injunction with the European Court of Human Rights.5 Scientists associated with the LHC have received death threats6, hackers have broken into the LHC’s computers7, and in India, a sixteen-year-old girl reportedly committed suicide out of fear after watching a television program about the LHC’s danger to the earth.8 Hollywood frequently raises the specter of wayward science giving birth to a global disaster, but rarely does it venture to the courtroom for a solution in such cases. Will the real world prove more creative?
II. What Is the Large Hadron Collider and Why Do People Fear It?
The LHC is a particle accelerator, whose name derives from the fact that it is large—built in a ring shape under the countryside near Geneva, Switzerland, it has a radius of 27 kilometers (16.8 miles)—and that it accelerates hadron particles—better known to laymen as protons or ions—and engineers the collision of these particles.9 These collisions will occur at higher energies that are concentrated more densely than has ever been possible via man-made intervention before.10 By monitoring the results of the collisions, CERN scientists hope to recreate the conditions of the universe that existed a fraction of a second after the Big Bang, and to prove or disprove elements of the Standard Model, which is the currently-reigning theory for explaining why the laws of physics in our universe operate the way that they do.11 On these statements, everyone can agree.
Less agreed-upon is whether the LHC could also prove correct certain theories about microscopic black holes, magnetic monopoles and “strangelets” by creating them.12 A microscopic black hole is exactly what it sounds like: a tiny version of the black hole formed by the collapse of a dying star.13 According to the Citizens Against the LHC, the LHC could create such micro black holes at a rate of one per second, and if they accumulated, they would eventually suck the entire Earth into them.14 A magnetic monopole is a hypothetical particle that carries only one magnetic charge or “pole,” compared to the everyday magnet that always has a north and a south pole, and if they do exist, then theoretically, immediately upon creation they would begin to catalyze the decay of known particles like protons in an uncontrollable reaction similar to that of a nuclear bomb.15 And a strangelet is another hypothetical particle that, if it does exist and is created by the LHC, theoretically could trigger an unstoppable fusion reaction that would transform the whole planet into a gigantic strangelet.16
III. Judging a Potential Global Catastrophe
All three of the above scenarios would presumably end life as we know it if they came to pass, but CERN and most physicists believe that the probability of the LHC creating such scenarios is so infinitesimal as to be nonexistent.17 In particular, CERN argues that cosmic rays have entered the Earth every day for billions of years and while on Earth, have collided at far higher energies than the LHC will be able to produce without ever having resulted in a planet-wide catastrophe.18 Nevertheless, the Citizens Against the LHC, as represented by Spanish science writer Luís Sancho, have urged a U.S. district court in Hawaii to enjoin the LHC from full
The main allegations made by Sancho: 1) the U.S. government has failed to carry out an environmental impact study of the LHC under the National Environmental Policy Act (NEPA), including a period for review and comments by the public; and 2) the U.S. government has failed to follow the risk-management requirements of the European Union’s “Precautionary Principle.”20 The U.S. government has responded by questioning whether Sancho has standing to submit the case, whether a U.S. district court has jurisdiction over the subject matter and whether the case is moot due to the statute of limitations.21 On the matter of standing, it argues that Sancho has not alleged a “credible injury” that is personal to him, given that the main substance of his claim is that the European-based LHC may trigger an event that would have to destroy the entire world to affect him.22 On the matter of jurisdiction, the U.S. government argues that the LHC is the responsibility of CERN, which is an international, non-governmental body in which the U.S. government plays no significant, active part.23 Alternatively, on the matter of mootness, the U.S. government holds that any duty of oversight would have arisen in 1997 or 1998, when the National Science Foundation and the U.S. Department of Justice “committed” to the LHC project, and that such a duty has already expired.24 Either way, the federal government argues it has no duty under the National Environmental Policy Act to conduct environmental-impact studies of the LHC, as that act only applies to federal agencies and CERN is not a federal agency.25
IV. The Timeline for Averting Planetary Destruction
At a combined hearing for the U.S. government’s motions to dismiss and for summary judgment, Chief Judge Helen Gillmor seemed sympathetic to the government’s arguments for lack of jurisdiction and of standing.26 She ruled without permitting further argument that any allegations based on the Precautionary Principle of the EU would not be heard for lack of jurisdiction, as the underlying EU law had not been incorporated into U.S. domestic law.27 However, after chiding both parties at length for committing numerous procedural errors, Judge Gillmor allowed them to continue filing documents with the proviso that each new filing must be with a leave of court to file.28
On Sept. 26, 2008, Judge Gillmor heard the federal government’s motion to dismiss and granted it on the grounds that since the U.S.’s participation in the LHC project did not amount to a “major federal action” under NEPA, the court lacked subject matter jurisdiction to hear the suit.29 The U.S.’s funding to CERN for the LHC constituted a relatively insignificant fraction of the total funding–$531 million out of an estimated $8 billion—and the U.S. also lacks control over the LHC, as its agreement with CERN only grants it non-voting “observer” status.30 Given the lack of subject matter jurisdiction, Judge Gillmor declined to reach the issues of standing and mootness.31 While she noted that the suit is rooted in a “disagreement among scientists” that is of concern to a wider audience, Judge Gillmor was of the opinion that such “policy objections” were better addressed through the political process.32 So ends the legal action in the U.S. against the LHC, it would appear.
A suit in the European Court of Human Rights for an injunction against the LHC was summarily rejected without an official ruling.33 But the Court is allowing the suit to proceed to judgment on the merits of a possible violation to the rights to life and to private family life, as guaranteed under the European Convention of Human Rights.34 In the meantime, the LHC has suffered several technical setbacks that will prevent full operation, and consequently those controversial particle collisions, for several months.35 It remains to be seen whether the European Court of Human Rights will evaluate the merits of the suit against the LHC, or whether CERN can fix the LHC in time to render that suit moot by virtue of operation without global destruction.
Editor’s Note: A number of commenters have raised concerns about the scientific qualifications of individuals involved in bringing these lawsuits. While we believe those qualifications are less relevant to the procedural legal issues discussed within the post, we wish to acknowledge the concerns. All qualifications as reported in this post are taken from the sworn affidavits of the parties involved. Certainly, if a case such as these were allowed to proceed to analysis on the merits, the qualifications of any scientific experts involved would be a serious issue.
1. Has the Large Hadron Collider Destroyed the World Yet? (last visited Oct. 17, 2008)
2. Press Release, CERN, CERN Reiterates Safety of LHC on Eve of First Beam (Sept. 5, 2008).
3. Citizens Against the Large Hadron Collider Legal Room (last visited Sept. 27, 2008).
4. Compl., 10-11, March 14, 2008.
5. Richard Gray, Legal bid to stop CERN atom smasher from ‘destroying the world,’ The Daily Telegraph, Sept. 9, 2008.
6. Cgh, Large Hadron Collider: The Controversial Search for the God Particle, Spiegel Online International, Sept. 9, 2008.
7. Roger Highfield, Hackers attack Large Hadron Collider, The Daily Telegraph, Sept. 12, 2008.
8. Girl suicide ‘over Big Bang fear,’ BBC.com, Sept. 11, 2008.
9. CERN, LHC: The Guide, 15, 20. [hereinafter LHC: The Guide];
CERN, LHC Geographical Situation.
10. LHC: The Guide, supra note 8 at 3-4, 12, 21.
11. Id. at 6, 11, 22-25.
12. CERN, The Safety of the LHC. (last visited Sept. 19, 2008) [hereinafter
Safety of the LHC]; Compl. 3-5.
13. Safety of the LHC, supra note 12.
14. Compl. 4; Wagner Aff., 6, March 14, 2008.
15. Compl. 4.
17. Safety of the LHC, supra note 12; LHC Safety Assessment Group, Review of the Safety of LHC Collisions, 35 J. of Physics G: Nuclear and Particle Physics 115004, 115005-06 (2008).
18. LHC Safety Assessment Group, supra note 17 at 115006-08.
19. Compl., 10-11.
20. Id. at 6-10. For the EU, the Precautionary Principle provides a framework for deciding when governmental intervention to prevent harm to the environment or to the health of living things. Communication from the Commission on the Precautionary Principle, at 13-15, COM (2000) 1 final (Feb. 2, 2000).
21. Combined Mot. to Dismiss and Mot. for Summ. J. Hr’g Tr. 12, 29, Sept. 2, 2008.
22. Id. at 25-27.
23. Id. at 10, 15-17.
24. Id. at 12-14.
25. Id. at 12-17.
26. Id. at 4-5, 23.
27. Id. at 4-5.
28. Id. at 2-11, 29-30.
29. Sancho v. U.S. Dep’t of Energy, No. 08-00136 HG KSC, 2008 WL 4370009, at *10 (D. Haw. Sept. 26, 2008). A copy of the ruling is available at: Alan Boyle, Doomsday lawsuit dismissed, MSNBC Cosmic Log, Sept. 26, 2008.
30. Id. at *7-10
31. Id. at *11.
32. Id. (“‘Neither the language nor the history of NEPA suggests that it was intended to give citizens a general opportunity to air their policy objections to proposed federal actions. The political process, and not NEPA, provides the appropriate forum in which to air policy disagreements.’” (citing Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 777 (1983))).
33. Gray, supra note 5.
35. Press Release, CERN, LHC Re-Start Scheduled for 2009 (Sept. 23, 2008).