Tri-Valley Cares v. U.S. Department of Energy

This case arises out of Plaintiffs-Appellants Tri-Valley CAREs’, Marylia Turner’s, and Janis Kate Turner’s (collectively, Tri-Valley CAREs) second challenge to the sufficiency of the United States Department of Energy’s (DOE) Environmental Assessment (EA) of a prospective “bio-safety level-3” (BSL-3) facility at the Lawrence Livermore National Laboratory (LLNL). In an earlier round of litigation, we upheld all aspects of the DOE’s original EA, except for its failure to consider the impact of a possible terrorist attack. Following our remand, on September 30, 2009, the district court entered summary judgment in the DOE’s favor on the grounds that it had sufficiently revised its Final Revised Environmental Assessment (FREA) to adequately consider the environmental impact of an intentional terrorist attack on the BSL-3 facility at LLNL. On November 18, 2010, Tri-Valley CAREs timely appealed the district court’s decision, petitioning us to require the DOE to prepare an Environmental Impact Statement (EIS), or, in the alternative, to revise its EA, in light of the allegations set forth in its original complaint, to determine whether an EIS is required.

We hold that the DOE…