The New York Times reports that two men in Hawaii have filed a lawsuit in federal court to stop the construction of a particle accelerator near Geneva. The plaintiffs claim that the facility on the French-Swiss border—which is partially funded by the U.S. government—might create bizarre physical conditions that would lead to the creation of a black hole capable of swallowing the planet. The case is set for an initial conference with the Justice Department in mid-June. Could the government be legally responsible for risking the apocalypse?
No. For cases like the one filed last month against the Large Hadron Collider in Geneva, the plaintiffs face several virtually insurmountable barriers in U.S. courts. As part of the demonstration of standing, they must prove damages or the threat of damages, known as “injury-in-fact.” In this case, they must demonstrate that the threat posed by the LHC is genuine and significant. When one of the same plaintiffs filed a similar case against the Relativistic Heavy Ion Collider in 1999, a California court ruled that his claims were “speculative” and that he failed to prove any imminent risk.
There is no hard and fast rule for how probable a risk must be in order to qualify as injury-in-fact. In 2006, the D.C. Circuit Court of Appeals ruled (PDF) that that the Natural Resources Defense Council had standing to sue the EPA over ozone depletion on the basis of a risk of nonfatal skin cancer in one out of 200,000 people. However, even physicists who have been charitable to the concerns over the particle accelerator overwhelmingly say the probability of a disaster is many orders of magnitude smaller than that.
Even if the plaintiffs could gain standing in their case—a matter that would also involve questions of when individuals have standing on environmental threats—they would have to demonstrate that those overseeing the collider had broken the law in some way. The current lawsuit charges that the defendants, including the U.S. Department of Energy, violated the National Environmental Policy Act by failing to adequately notify the public of safety concerns.
The lawsuit also argues that the defendants ignored the “precautionary principle,” an approach to weighing the promises and risks of research. A definition of the principle drafted by a 1998 consortium stated, in part, that when a line of research posed a threat to humans, “the proponent of an activity, rather than the public, should bear the burden of proof.” But while the precautionary principle has not been enshrined in law in the United States, the European Union has incorporated the doctrine into many of its policies, based on guidelines adopted in 2000. The plaintiffs in the LHC case directly charge the Center for Nuclear Energy Research, which operates the collider, with violating the EU’s precautionary principle. However, the center is outside the jurisdiction of U.S. courts.
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Explainer thanks the Department of Energy, Cass Sunstein of the University of Chicago, and Jonathan Turley of George Washington University.
