BHOPAL, PRECAUTION, AND THE

BOSTON BIOLAB

PETER MANUS*

INTRODUCTION

In February 2008, the New England Law Review hosted a conference

on the 1984 Bhopal tragedy, examining its causes and consequences and
identifying lessons that may or may not have been learned as a result of the
disaster and its aftermath.' Several panelists examined the persistent
presumption that exposure to toxicity is an inevitable element of human

* Professor of Law, New England School of Law, Co-Director, Center for Law and
Social Responsibility, and Director of its Environmental Advocacy Project, which co-
sponsored this symposium.
1. During the night of December 2 and 3, 1984, many thousands of people were killed
or severely injured by a massive release of methylisocyanate gas from the Union Carbide
India Ltd. pesticide manufacturing plant in Bhopal. The event has been dubbed the
"chemical Hiroshima," and its victims have yet to receive adequate compensation.
Contamination of land and water lingers to present day. See I. LABUNSKA, A. STEPHENSON,
K. BRIGDEN, R. STRINGER, D. SANTILLO & P.A. JOHNSTON, THE BHOPAL LEGACY: Toxic
CONTAMINANTS AT THE FORMER UNION CARBIDE FACTORY SITE, BHOPAL, INDIA: 15 YEARS
AFTER THE BHOPAL INCIDENT (1999), available at http://www.greenpeace.org/raw/content/
international/press/reports/the-bhopal-legacy-toxic-cont.pdf (field study of long term
environmental contamination subsequent to the disaster); Hanson Hosein, Unsettling:
Bhopal and the Resolution of InternationalDisputes Involving an EnvironmentalDisaster,
16 B.C. INT'L & COMP. L. REV. 285 (1993) (offering a close examination of the legal
aftermath of the disaster, including litigation and settlement efforts); Sukanya Pillay,
Absence of Justice: Lessons from the Bhopal Union CarbideDisasterfor Latin America, 14
MICH. ST. J. INT'L L. 479 (2006) (discussing the tragedy and aftermath with an emphasis on
the Indian court response and whether human rights protections are invoked); Malcolm J.
Rogge, Towards Transnational Corporate Accountability in the Global Economy:
Challenging the Doctrine of Forum Non Conveniens in In Re: Union Carbide, Alfaro,
Sequihua, and Aguinda, 36 TEX. INT'L L.J. 299 (2001) (criticizing the dismissal on forum
non conveniens grounds of the case brought by victims against Union Carbide in the United
States); Armin Rosencranz & Kathleen D. Yurchak, Progresson the Environmental Front:
The Regulation of Industry and Development in India, 19 HASTINGS INT'L & COMP. L. REV.
489 (1996) (evaluating India's legal system and environmental laws with a focus on the
environmental harms that resulted from the Bhopal disaster).
 NEW ENGLAND LAW REVIEW [Vol. 42:847

progress.2 These speakers questioned our complacency about the

environmental and public health threats that are posed by so many elements
of modem life, including not only industrial operations such as the
pesticides plant in Bhopal, but also the manufacture of chemically-
saturated synthetics and other substances that surround all of us in our
everyday lives. These speakers also criticized the prevalent pattern of
decisionmaking in the United States, which fails to protect the public and
the environment from exposure to serious toxic risks prior to those risks
being proven or quantified. In keeping with the message sent by these
conference participants, this Article examines the precautionary principle, a
principle of decisionmaking under which significant public health and
environmental threats are unacceptable as either goals or byproducts of
human activity. This Article then discusses the current effort to site a
laboratory where scientists will study the most dangerous pathogens known
to man in a crowded, mixed-use neighborhood of Boston, evaluating the
several court opinions that have emerged in connection with this project for
their adherence to the precautionary principle.
I. THE PRECAUTIONARY PRINCIPLE

The PrecautionaryPrinciple-thosetwo little words that start

conference room brawls on this side of the Atlantic ....
A. Defining the Precautionary Principle
In spite of its seemingly simple "safety first" message, the
precautionary principle has proven itself a thorny concept to define. 4

2. Professor Michael Baram, Boston University School of Law, Remarks at the New
England Law Review Symposium: The Bhopal Disaster Approaches 25: Looking Back to
Look Forward (Feb. 8, 2008) (Digital Video Disc ("DVD") recording on file with the New
England Law Review); Dr. Joel Tickner, University of Massachusetts at Lowell, Remarks at
the New England Law Review Symposium: The Bhopal Disaster Approaches 25: Looking
Back to Look Forward (Feb. 8, 2008) (DVD recording on file with the New England Law
Review).
3. Sandra Steingraber, Report from Europe: Precaution Ascending, RACHEL'S
ENVIRONMENT & HEALTH NEWS #786, Mar. 4, 2004, http://www.rachel.org/en/node/6467
(discussing the success of precaution in the European community).
4. See Cass R. Sunstein, Beyond the Precautionary Principle, 151 U. PA. L. REV.
1003, 1003-04 (2003).
All over the world, there is increasing interest in a simple idea for the
regulation of risk: In case of doubt, follow the precautionaryprinciple.
Avoid steps that will create a risk of harm. Until safety is established, be
cautious; do not require unambiguous evidence. In a catchphrase: better
safe than sorry. In ordinary life, pleas of this kind seem quite sensible,
indeed a part of ordinary human rationality.
2008] PRECAUTION AND THE BIOLAB

Attempts to express the principle in tidy moral homilies such as "look

before you leap" and "better safe than sorry" can cause more confusion
than they eliminate; the first can be interpreted to urge us to assess a
planned activity's negative consequences, but not necessarily to prohibit
them, while the second can be read to presume that all choices may be
readily and objectively categorized as either "safe" or "high-risk." Studies
have identified multiple versions of the principle, which range from its
serving as not much more than a recasting of risk assessment to its serving
as a roadblock to all technological, industrial, and scientific activity where
any and all potential detrimental environmental consequences have not
been thoroughly vetted and eliminated. 5 Some proponents of

Id. Sunstein goes on to criticize the precautionary principle as "paralyzing," essentially

because all choices, including the choice to sustain the status quo, present environmental
risks. He also faults decisions made under the principle because of the human tendency to
distort and otherwise wrongly evaluate public health risks. Id.
5. See id. at 1011-14 (describing weaker and stronger versions of the principle).
The most cautious and weak versions suggest, quite sensibly, that a lack
of decisive evidence of harm should not be grounds for refusing to
regulate. Regulation might be justified even if we cannot establish a
definite connection between, for example, low-level exposures to certain
carcinogens and adverse effects on human health....
In Europe, the precautionary principle is sometimes understood in an
even stronger way, suggesting that it is important to build "a margin of
safety into all decision making." According to one definition, the
precautionary principle means "that action should be taken to correct a
problem as soon as there is evidence that harm may occur, not after the
harm has already occurred." In a comparably strong version, it is said
that
the precautionary principle mandates that when there is a risk of
significant health or environmental damage to others or to future
generations, and when there is scientific uncertainty as to the nature
of that damage or the likelihood of the risk, then decisions should be
made so as to prevent such activities from being conducted unless
and until scientific evidence shows that the damage will not occur.
Id. at 1012-13 (internal citations omitted).
Precaution proponents appear to have less difficulty defining the principle. See, e.g.,
Stephen G. Wood, Stephen Q. Wood & Rachel A. Wood, Whither the Precautionary
Principle? An American Assessment from an Administrative Law Perspective, 54 AM. J.
COMP. L. 581, 581 (2006).
The precautionary principle permits decisionmakers to avoid or
minimize risks whose consequences are uncertain but potentially serious
by taking anticipatory action. The "catchphrase" attached to this
principle is: better safe than sorry. The precautionary principle
consequently comes into play "[w]here risks of serious or irreversible
damages are identified but conclusive evidence is not available[.]"
 NEW ENGLAND LAW REVIEW [Vol. 42:847

environmentally-sensitive decisionmaking policies have come to avoid

using the term due to its propensity to inspire confusion or, worse,
presumptions that its advocates
6
espouse the most aggressive brand of anti-
industry environmentalism.
Nevertheless, several reasons encourage a continued effort to promote
the principle. Among these is the fact that the precautionary principle is
openly referenced and utilized in both foreign and international
instruments. 7 Thus, it is both a term and a mind-set that has become part of
the law regardless of U.S. skepticism about its real-world applicability.8

Under those circumstances, the appropriateness of a legal framework

that demands certainty is called into question.
Id. (citations omitted) (alteration in original). But see id. at 589-90 (admitting that the
principle is much criticized for its multiple formulations).
One aspect of the precautionary principle that has received considerable
attention is that there are multiple formulations rather than a single,
uniformly accepted formulation of the precautionary principle ...
Proponents of the precautionary principle acknowledge this fact; critics
emphasize this fact, asserting that the multiple formulations are "not
compatible with one another[,]" "incoherent[,]" "cost-blind[,]" and are
"hopelessly vague[,]" providing no guidance.
Id. (citations omitted) (alteration in original).
6. See, e.g., Sunstein, supra note 4, at 1003.
In its strongest and most distinctive forms, the principle imposes a
burden of proof on those who create potential risks, and it requires
regulation of activities even if it cannot be shown that those activities
are likely to produce significant harms. Taken in this strong form, the
precautionary principle should be rejected, not because it leads in bad
directions, but because it leads in no direction at all. The principle is
literally paralyzing-forbidding inaction, stringent regulation, and
everything in between. The reason is that in the relevant cases, every
step, including inaction, creates a risk to health, the environment, or
both.
Id.; see also Alliance for a Healthy Tomorrow, S-1268 & H-2275 The Act for a Healthy
Massachusetts: Safer Alternatives to Toxic Chemicals, http://www.cleanwateraction.org/
ma/aht/healthyMA.html (last visited Apr. 24, 2008) (advocating for a precautionary
approach while avoiding the use of the term itself).
7. See Sunstein, supra note 4, at 1012-15 (discussing the widespread use of the
precautionary principle in European and international instruments). Some consider the
principle to be reflected in U.S. law as well. See, e.g., Wood, supra note 5, at 585-87
(detecting precaution in elements of certain federal environmental statutes, numerous
administrative agency processes such as risk assessments, and various court opinions).
8. See Sunstein, supra note 4, at 1007 ("Notwithstanding official American
ambivalence about the principle, there are unmistakable echoes of the principle in American
environmental law." (citing as an example of precaution in U.S. law the "adequate margin
of safety" language in section 109 of the Clean Air Act, 42 U.S.C. 7409(b)(1) (2000))).
2008] PRECAUTION AND THE BIOLAB

Another reason to maintain the principle's presence in our environmental

vernacular is that, however interpreted, it advocates in favor of
environmentally benign decisionmaking, and, like its precursors in the
environmental movement, precaution's time will come through patience
and perseverance. In this spirit, this Article presents the following as a
working definition of the principle.
The precautionary principle is an ideal under which the recognition of
potential public health and environmental threats serve as key factors in
guiding policy development and logical decisionmaking. Where the
potential public health or environmental threats presented by a given course
of action are high, the principle warrants that these threats weigh heavily
against that course of action, and that alternative strategies toward reaching
the benign goals motivating the suggested course of action be explored.
Where all conceived avenues to said benign goal present real or potential
significant public health or environmental threats, the precautionary
principle recommends further study so that means may be developed
through which to eliminate or significantly reduce the public health or
environmental threats. The precautionary approach acknowledges and, in
fact, embraces the need for government and private sector initiatives
through which increasingly less environmentally threatening and health-
threatening systems and technologies may be used to meet both public
sector and industry goals. The principle does not, however, envision a
world in which the needs and conveniences of humankind may be achieved
without any level of environmental or public health risk. The touchstone of
precaution is to provide multiple and varied effective incentives that inspire
all societal sectors to apply themselves toward the reduction of
environmental harms and risks, and in that way to achieve a healthier
world. Thus, the principle should inspire technological ingenuity. It is
anything but the enemy of human comfort and the robust development of
new industries. It threatens only those who would pollute needlessly and
those who resist the idea that new technologies be developed responsibly.

B. Precaution in U.S. Environmentalism

Most of man's habitualtamperingwith nature'sbalance... 9
has been
done in ignorance of the fatal chain of events that wouldfollow.

Like other definitions of the precautionary principle, the definition

offered above is vulnerable to charges that it is nothing more than a
restatement of existing environmental review requirements or, conversely,
that it threatens to bring to a standstill all ingenuity and technological
exploration commonly characterized as progress. Further discussion of the

9. RACHEL CARSON, THE SEA AROUND Us 95 (1989).

 NEW ENGLAND LAW REVIEW [Vol. 42:847

principle envisioned by this Article's definition may respond to such

charges.
In 1962, Rachel Carson published Silent Spring, the book credited
with awakening the environmental conscience of the technology age.' The
book presents Carson's views that the spraying of dichloro-diphenyl-
trichloroethane ("DDT") would fail to meet its goal of eradicating the
mosquito and was also causing widespread poisoning of humans, animals,
and other elements of the environment." l It presents numerous examples of
how human efforts to increase crop production and eliminate pests through
chemical applications could in fact cause the targeted pests to propagate
while both the pests' natural predators and the plant life that the pests
destroyed suffered. 12 Carson's advocacy, which never called for the

10. See generally, PAUL BROOKS, THE HOUSE OF LIFE: RACHEL CARSON AT WORK
(1989).
Rachel Carson's last book, Silent Spring, may have changed the course of history.
"A few thousand words from her," declared one editorial writer about
Rachel Carson, "and the world took a new direction." One of the
nation's most effective environmentalists, Supreme Court Justice
William 0. Douglas, predicted that Silent Spring would become "the
most important chronicle of this century for the human race." Time will
tell. But there is no question that it did much to spark the environmental
movement, to convince us that our own welfare is dependent on the
health of the environment as a whole.
Id at xi-xii.
11. RACHEL CARSON, SILENT SPRING 8 (25th anniv. ed., Houghton Mifflin Co. 1987)
(1962).
The whole process of spraying seems caught up in an endless spiral.
Since DDT was released for civilian use, a process of escalation has
been going on in which ever more toxic materials must be found. This
has happened because insects, in a triumphant vindication of Darwin's
principle of the survival of the fittest, have evolved super races immune
to the particular insecticide used, hence a deadlier one has always to be
developed-and then a deadlier one than that. It has happened also
because . . . destructive insects often undergo a "flareback," or
resurgence, after spraying, in numbers greater than before. Thus the
chemical war is never won, and all life is caught in its violent crossfire.
Id.
12. Id. at 80.
Ragweed, the bane of hay fever sufferers, offers an interesting example
of the way efforts to control nature sometimes boomerang. Many
thousands of gallons of chemicals have been discharged along roadsides
in the name of ragweed control. But the unfortunate truth is that blanket
spraying is resulting in more ragweed, not less. Ragweed is an annual;
its seedlings require open soil to become established each year. Our best
protection against this plant is therefore the maintenance of dense
2008] PRECAUTION AND THE BIOLAB

elimination of all pesticide use or the widespread banning of chemicals,

amounted to a plea that precaution be exercised as a means of reasoned
decisionmaking where negative environmental impacts were foreseeable,
and also that some effort be put toward identifying such negative
environmental impacts.
It is true that Silent Spring is credited with the advent of the modem
environmental movement, which includes the promulgation of countless
environmental statutes.' 3 Thus, it may logically be posited that Carson's
precautionary thesis has become embedded in American culture. Over the
half century since Silent Spring's powerful reception, however, the culture
has not maintained a wholehearted embrace of Carson's philosophy.
Perhaps the most damning evidence of this is the much-touted criticism of14
Rachel Carson as being responsible for more deaths than Adolph Hitler.

shrubs, ferns, and other perennial vegetation. Spraying frequently

destroys this protective vegetation and creates open, barren areas which
the ragweed hastens to fill.
Id.
[S]cientific studies have established the critical role of birds in insect
control.... But what happens in nature is not allowed to happen in the
modem, chemical-drenched world, where spraying destroys not only the
insects but their principle enemy, the birds. When later there is a
resurgence of the insect population, as almost always happens, the birds
are not there to keep their numbers in check.
Id. at 112-13.
The irony of [the] all-out chemical assault on roadsides and utility
rights-of-way is twofold. It is perpetuating the problem it seeks to
correct, for as experience has clearly shown, the blanket application of
herbicides does not permanently control roadside "brush" and the
spraying has to be repeated year after year. And as a further irony, we
persist in doing this despite the fact that a perfectly sound method of
selective spraying is known, which can achieve long-term vegetational
control and eliminate repeated spraying in most types of vegetation.
Id. at 74.
13. See generally, CAROL B. GARTNER, RACHEL CARSON (1983).
[Silent Spring] is a highly political book, urging profound reorientation
of beliefs, attitudes, and practices on the part of both governments and
the public. Such sweeping reassessment threatened the economic
interests of powerful corporations and all those they supported in
industry, government agencies, and universities. It could and did lead to
governmental actions to control the use of pesticides.
Id. at 102.
14. See, e.g., Aaron Swartz, Rachel Carson, Mass Murderer? The Creation of an Anti-
Environmental Myth, FAIR: FAIRNESS & AccURACY IN REPORTING, Sept.-Oct. 2007
(offering a negative critique of the various articles that have compared Carson with Hitler).
 NEW ENGLAND LAW REVIEW [Vol. 42:847

The supposed logic behind this accusation is that, by precipitating the U.S.
ban of DDT, Carson is responsible for the continued existence of malaria-
carrying mosquitoes, and that over the years since 1962, more people have
died from malaria than were killed under Hitler's campaign against the
Jews during World War 11.15
Putting aside the distastefulness of drawing an analogy between the
Nazi effort to murder a race of humans and the environmental effort to
resist the mass poisoning of people, wildlife, crops, and the natural systems
that support life, the analogy illustrates how profoundly ignorant those who
accept it are about the precautionary mindset. We can accept that all
malaria deaths since 1962 may have been prevented by the spraying of
DDT only if we accept multiple presumptions, including the presumption
that DDT would have effectively eradicated the disease-carrying mosquito,
that other DDT-resistant species could never have filled the gap left by the
mosquito, and that the sprayed DDT could not have had deadly impacts on
species other than the mosquito, including humankind. A precautionary
approach mandates that humans perceive and consider the multifaceted
relationships among nature's elements; it is based not solely on the moral
imperative that humankind serve as a steward of the planet, but also on a
very anthropocentric concern that the evils we visit upon the environment
will rebound and cause harm to humankind. Anyone who accepts the claim
that fifty years of DDT spraying would have eradicated malaria and caused
no other environmental
6 or public health impacts is far from understanding
how nature works.'
II. THE BOSTON BIOLAB LITIGATION: THE POTENTIAL FOR A
PRECAUTIONARY DECISION

Starting in the early 1990s, an affiliate of Boston University named

University Associates launched a development project involving the
construction of a major medical research facility ("Biolab") in a densely
populated, primarily lower-income and residential urban area of Boston
known as the South End. Although the original plan for the Biolab did not
include a top-security research laboratory, the University now plans to
house a biosafety level 4 ("BSL-4") laboratory there. At the BSL-4
laboratory, scientists will study various highly dangerous organisms that
can cause infectious diseases in humans, in part to increase preparedness in
the event of an act of biological terrorism. Currently, only three BSL-4

15. Id.
16. See RACHEL CARSON, THE EDGE OF THE SEA 10 (1955) ("Nature has introduced great
variety into the landscape, but man has displayed a passion for simplifying it. Thus he
undoes the built-in checks and balances by which nature holds the species within bounds.").
2008] PRECA UTION AND THE BIOLAB

laboratories exist in the United States. 17

A. The Massachusetts Environmental Policy Act

Even prior to its modification to include the BSL-4 laboratories, the
Biolab project triggered the Massachusetts Environmental Policy Act
("MEPA"), which requires an environmental impact review for
development projects in Massachusetts that exceed certain regulatory
thresholds or otherwise trigger the statute's application.' 8 MEPA requires
Massachusetts agencies to use all practicable means to minimize the
significant detrimental environmental impacts of their activities, and to
issue a report that sets forth such environmental impacts and the feasible
measures taken to avoid or minimize them.' 9 Where an agency provides
funding or approvals for a project, the private entity seeking such agency
action prepares the environmental impact report ("EIR").2 In connection
with the Biolab, University Associates prepared the EIR. 2 1 On the basis of
the preliminary Environmental Notification Form, in which University
Associates described the original project's proposed impacts on traffic,
transit, parking, air quality, historic resources, water use, and wastewater
generation, the Massachusetts Secretary of Environmental Affairs
("Secretary") concluded that the project necessitated a full-fledged EIR,
including an analysis of alternatives to the planned construction.22
In September 2003, after the scope of the EIR had been defined, the
National Institute of Health accepted Boston University's grant proposal to
use part of the laboratory as a BSL-4 laboratory. University Associates
asked the Secretary if a change in the scope of the EIR was required, and
her office replied in the negative. 23 As a result, the Draft EIR did not cover

17. Ten Residents of Boston v. Boston Redev. Auth., 21 Mass. L. Rptr. 324, 325-26
(Mass. Super. 2006), available at 2006 WL 2440043.
18. See MASS. GEN. LAWS ch. 30, 61 (2006) ("All agencies ... of the commonwealth
shall review, evaluate, and determine the impact on the natural environment of all works,
projects or activities conducted by them and shall use all practicable means and measures to
minimize damage to the environment.").
19. Id. ("Any determination made by an agency of the commonwealth shall include a
finding describing the environmental impact, if any, of the project and a finding that all
feasible measures have been taken to avoid or minimize said impact.").
20. MASS. GEN. LAWS ch. 30, 62B (2006) ("In the case of projects which require a
permit or financial assistance from an agency, said report shall be prepared and submitted
by the person or agency seeking the permit or financial assistance.").
21. Ten Residents of Boston, 21 Mass. L. Rptr. at 325-26.
22. Id.
23. Id. at 326. In a letter dated June 30, 2003, the Assistant Secretary observed that the
Draft EIR then under development needed to set forth a description of the proposed changes
and a thorough analysis of environmental impacts that might result from the currently
 NEW ENGLAND LA W REVIEW [Vol. 42:847

the special environmental and public health threats presented by a BSL-4

laboratory, an omission that the environmental organization Alternatives
for Community and Environment ("ACE") characterized as "extraordinary"
in its comments on the Draft EIR.2 4
The Secretary approved the Draft ElR, but issued a statement that the
Final EIR needed to respond to the comments submitted by ACE. 25 In July
2004, University Associates filed the Final EIR, which included discussion
of a hypothetical situation in which anthrax was accidentally released in the
BSL-4 laboratory and then expelled to the outside world through the
exhaust system.26 The Final EIR also contained brief discussions of
additional hypothetical risk scenarios, along with commentary about the
unlikelihood of such scenarios occurring.2 7 After receiving comments, the
Secretary certified the Final EIR as complying with MEPA.28

planned development. Apparently, this mandate did not alter the scope of environmental
impacts that the Secretary expected University Associates to address in the Draft EIR. Id.
24. Id. The opinion quotes ACE's conclusions about the Draft EIR:
To draw an analogy, the [Draft EIR] that the proponent submitted is like
a [Draft EIR] for a coal burning plant that discusses traffic patterns and
foundation plantings while ignoring the operations of the plant itself and
how those operations would affect the environment. In short, to assess
the full environmental impact of the laboratory, the [Draft EIR] must
describe and assess the work that will take place within the laboratory
building, the impact of that work on the design of the project and the
environment, potential mitigation measures, and alternatives.
Id. (quoting MASS. EXEC. OFF. OF ENVTL. AFFAIRS, ADMN. REc. 121) (alterations in
original).
25. Id. at 326-27. The Secretary identified safety as the primary issue necessitating
detailed attention in the Final EIR, and also required that the Final EIR "respond to the
'detailed comment letter submitted by [ACE]."' Id. at 327 (quoting MASS. EXEC. OFF. OF
ENVTL. AFFAIRS, ADMIN. REc. 23) (alteration in original).
26. Id. at 327. The hypothetical event "analyzed assumed that dry purified anthrax
stored in a 15 milliliter test-tube was accidentally dropped in the BSL-4 laboratory,
releasing 10 billion anthrax spores in aerosolized form within the laboratory." Id. It also
assumed that there would be a "complete failure of all containment systems." Id. The report
concluded that "'the risk of public harm [under this scenario] is so minute that it is
negligible."' Id. (quoting MASS. EXEC. OFF. OF ENVTL. AFFAIRS, ADMIN. REC. 73, 1167,
1170).
27. Ten Residents of Boston, 21 Mass. L. Rptr. at 327. Additional risk scenarios
discussed included "the risk of staff acquiring infections within the laboratory, the release of
contaminated air through the exhaust system, the escape of an infected animal, the shipment
of biological material, the unauthorized removal of biological material from the containment
area, and the threat of terrorism." Id.
28. Id. ("On November 15, 2004, after receiving numerous comments ... the Secretary
issued a Certificate stating that the Final EIR adequately and properly complied with
MEPA.").
2008] PRECAUTIONAND THE BIOLAB

B. Ten Residents of Boston v. Boston Redevelopment Authority

Ten Boston residents brought an action, claiming that the Secretary's
decision in approving the EIR was in error. 29 Among other accusations of
wrongdoing, the plaintiffs claimed that the Final EIR failed to adequately
address the environmental and public health threats presented by a BSL-4
laboratory in two ways. First, pleintiffs pointed out that, in limiting the
worst-case analysis to a scenario in which anthrax escaped, the Final EIR
ignored the potential for an epidemic launched by the infection of a human
with a contagious disease such as the Ebola virus or smallpox. 30 Second,
plaintiffs pointed out that the alternatives analysis failed to give any serious
consideration to sites other than the planned site in Boston's South End.3 '
After the superior court issued an order dismissing certain counts that
did not include the claims addressing the worst-case and alternatives
analysis, the plaintiffs moved for judgment on the pleadings to resolve
those claims. 3 Suffolk County Superior Court Justice Gants agreed with
the plaintiffs on both of their major arguments, finding that the Secretary
acted arbitrarily and capriciously in deeming the Final EIR adequate in
light of its worst-case and alternatives discussions. 33 Although the court
noted that the unique and catastrophic nature of the risks posed by the
Biolab project do not alter its standard of review, the court nevertheless
determined that the nature of the risk may affect the amount of information
that a court may reasonably expect to find in the Final EIR for such a
project in order that the court may conclude that the Secretary's basis for

29. Id. at 327-28. The complaint included the following counts: (I) that University
Associates concealed from the Secretary information about an incident of tularemia
infections that had occurred at a Boston University laboratory in 2004; (II) that the Final
EIR worst-case and alternatives analyses were inadequate under MEPA; (III) that the
transfer of the parcels on which the Biolab is to be situated from the Boston Redevelopment
Authority to University Associates were invalid due to University Associates' failure to
complete a MEPA analysis prior to the transfer date; and (IV) that the belated MEPA
findings produced by the agencies that transferred the Biolab parcels to University
Associates were inadequate. Id. at 328.
30. Id. at 328.
31. Id.
32. Id. at 328-29. The superior court dismissed Count I, which addressed the 2004
tularemia outbreak, and also dismissed certain aspects of Count III, which addressed the
timing of the land transfer from the Commonwealth to University Associates. Id. at 328.
33. Ten Residents of Boston, 21 Mass. L. Rptr. at 335. The court vacated the
certification and remanded the matter to the Secretary for further action in light of the
decision. In addition, because MEPA findings issued by two involved state agencies had
been based on the inadequate Final EIR, the court vacated those findings and issued a stay
on any agency actions premised on those findings pending the issuance of an adequate
Supplemental Final EIR. Id.
 NEW ENGLAND LAW REVIEW [Vol. 42:847

approving the Final EIR was rational.3 4 Faulting the Secretary with failing
to perceive the acute risks posed by the 2003 alteration of the project to
include the BSL-4 laboratory, the court determined that this error and the
inexplicit guidance that the Secretary gave University Associates on how to
expand upon the Draft EIR in the Final EIR allowed University Associates
to produce a Final EIR that did not, in fact, examine the most threatening
worst-case scenario imaginable, which was the accidental or purposeful 35
introduction of infectious disease to the population outside the laboratory.
The omission from the Final EIR of any analysis of this small but
significant risk, the court concluded, rendered
36
the Secretary's certification
of that Final EIR arbitrary and capricious.
The court also found fault with the alternatives analysis in the Final

34. Id. at 330. The court defined the arbitrary and capricious standard under which it
considered the Secretary's action as "whether the Secretary's exercise of her discretion
lacked a rational basis," id, and noted that even the remote potential for catastrophic
environmental harm to occur affected
the amount of information that a court reasonably may expect to be
contained in the Final EIR for the Secretary rationally to conclude that
the EIR has adequately and properly accomplished the objectives the
Secretary herself set forth--"to ensure that a project proponent studies
feasible alternatives to a proposed project; fully discloses environmental
impacts of a proposed project; and incorporates all feasible means to
avoid, minimize, or mitigate Damage to the Environment as defined by
the MEPA statute."
Id. (quoting MASS. ExEc. OFF. OF ENvTL. AFFAIRS, ADMIN. REc. 26); see also id. at 335
("The standard of review of the Secretary's certification ... requires a judicial finding that
her certification was arbitrary and capricious, that is, that it lacked a rational basis.").
35. Id. at 330-31.
36. See id at 335.
This Court finds that the Secretary's certification of the Final EIR
lacked the necessary rational basis. The Biolab, with its BSL-4
laboratory, poses the potential for extraordinary societal benefit and, if
enormous care is not taken, extraordinary risks to the environment and
public health. Even if all reasonable measures are taken to prevent the
release of a contagious pathogen, it is inevitable that some amount of
residual risk will remain if those measures fail. The Final EIR is
intended to identify the risks of failure, analyze them, and evaluate ways
to mitigate them. This Court finds that no EIR regarding this Biolab
project can rationally be found to comply adequately with MEPA that
failed to consider any "worst case" scenario that involved the risk of
contagion arising from the accidental or malevolent release of a
contagious pathogen, and that failed to analyze whether that "worst
case" scenario would be materially less catastrophic if the Biolab were
located in a feasible alternative location in a less densely populated area.
2008] PRECAUTION AND THE BIOLAB
7
EIR. After admitting that the MEPA regulations do not make clear
whether the "feasible alternatives" that project proponents must analyze
include alternative locations or simply alternative plans for one designated
location, the court nevertheless concluded that where a planned project
presented the potential for a catastrophic environmental impact, it is only
logical that the agencies making licensing and funding decisions on the
basis of the Final EIR receive information about the various impacts that
various types of locations could have on the potential and acuteness of the
risk presented.3 8 Population density, laboratory worker travel modes and
routes, and escape possibilities all differ as among urban, suburban, and
rural settings. 39 Thus, the Secretary could not rationally approve a Final
EIR containing no alternative locations analysis for a project where the
setting played an important role in the level of environmental risk
presented.4 In connection with this section of its analysis, the court also
referenced the Secretary's instructions to University Associates on the
Final EIR, which ordered that the Final EIR respond to ACE's detailed
comments on the Draft EIR. 41 An inference may be drawn from the court's

37. Id. at 334-35 (analyzing the scope of the alternatives analysis requirement under
MEPA and finding the Biolab Final EIR to fall short of what MEPA requires for a project
presenting the acute environmental and public health hazards inherent in this project).
38. Id.at 333-34. After determining that the MEPA statute does not make clear whether
the required alternatives analysis includes the idea that multiple sites be considered for any
project, the court looked to "the purpose and spirit of MEPA" and its implementing
regulations to conclude that the severity of a potential environmental impact may warrant an
alternative site analysis "when there is reason to believe that the environmental impact may
be significantly less at an alternative site." Id.
39. Ten Residents of Boston, 21 Mass. L. Rptr. at 334-35 ("[W]hen one recognizes that
the true 'worst case' scenario involves the risk of contagion, not inhalation, then the density
of the population surrounding the Biolab may have greater consequences for the extent of
the harm arising from that 'worst case."').
40. Id.at 335. The court stressed that its opinion addresses only the scope of the EIR
and not the Project itself:
[T]his decision should not be misunderstood to indicate that this Court
believes that the Biolab Project ...may not safely be located in the ...
South End, or that it would be safer if located in a suburban or rural
setting.... All that this decision means is that, by any rational standard,
in making decisions about this Biolab Project, these agencies [whose
permits or financing are needed for the Project] should have the benefit
of an EIR that evaluates the full extent of the potential environmental
impact of the Project and considers whether that impact would be
different at a feasible alternative site.
Id.
41. Id.("The Secretary, in certifying the Draft EIR, wrote that the Final EIR should
respond to the detailed comment letter submitted by ACE, and that letter specifically asked
that the EIR analyze alternative locations for the BSL-4 laboratory. Yet, the Final EIR never
 NEW ENGLAND LAW REVIEW [Vol. 42:847

reference to ACE's comments that the Secretary's certification was

irrational in light of the fact that the Final EIR failed to comply with her
explicit instructions about its coverage, but the opinion never states as
much, and it is also possible that the court's intent is to avoid any charge of
judicial overreaching by clarifying that the order it is issuing simply
reiterates the instructions given to University Associates by the Secretary.

C. Allen v. Boston Redevelopment Authority

University Associates filed a petition for interlocutory relief in the
Supreme Judicial Court of Massachusetts ("SJC"), which allowed transfer
of the case and issued an opinion in December 2007.42 Although the SJC
opinion emphasized the Secretary's broad discretion under MEPA and also
made note of the discretion appropriate for decisions within the Secretary's
area of expertise, the SJC nevertheless affirmed the superior court's
conclusion that the Secretary's certification of the Biolab Final EIR had
been arbitrary and capricious.43
Like the superior court, the SJC found the worst-case scenario
analysis "significantly incomplete" in its failure to analyze the
environmental damage that could be caused by the release of a contagious
pathogen. 4 Likewise, the SJC agreed with the superior court's conclusion
that the Final EIR's alternatives analysis needed to include an analysis of
locations other than the South End site.45 Rather than adopting the superior
court's emphasis on the rational interpretation of the alternatives analysis

considered any alternative feasible location.") (internal citation omitted).

42. Allen v. Boston Redevelopment Auth., 877 N.E.2d 904, 906-07 (Mass. 2007).
43. See id. at 913 (discussing Secretary's broad discretion under MEPA).
We recognize that the Secretary has considerable discretion over the
scope of an EIR given her expertise in environmental matters. At the
same time, the purpose of MEPA and the regulations promulgated
thereunder is "to provide meaningful opportunities for public review of
the potential environmental impacts of Projects .... " Accordingly, we
conclude that the judge's determination that the Secretary's certification
of the final EIR was arbitrary and capricious was warranted.
Id. at 915.
44. Id. at 914-16.
The release of a highly virulent and contagious pathogen from the
Biolab would present numerous and unique challenges for State
agencies, which those agencies likely would not confront if the release
involved a noncontagious pathogen. The absence of any information in
the final EIR about such a contingency, one likely to cause damage to
the environment, was a substantial oversight.
Id.at 915.
45. See id. at 916.
2008] PRECAUTION AND THE BIOLAB

as encompassing multiple locations where the risks posed by a project are

acute, however, the SJC emphasized the Secretary's discretion to decide
the types of project alternatives appropriate for inclusion in any particular
EIR.4 According to the SJC, the Secretary had made her decision on this
issue clear when she instructed University Associates to address in the
Final EIR the detailed comments submitted by ACE as a response to the
Draft EFR.47 ACE's comments "repeatedly and pointedly" called for
analysis of alternative locations.48 Accordingly, the SJC concluded that the
Secretary's certification of the
49
Final EIR, which wholly ignored this issue,
was arbitrary and capricious.

III. THE POTENTIAL FOR EFFECTIVE PRECAUTION IN THE BIOLAB SITING

PROCESS

Because MEPA requires that a project's analysis includes discussion

of measures taken to avoid damage to the environment, rather than
requiring a mere assessment of projected harms, it reflects the
precautionary philosophy that environmental analysis and protection be an
integral part of a project's design. However, the fact that the statute is
primarily a disclosure vehicle, meaning that the Secretary's function is to
assess whether project proponents meet the feasibility standards of the
statute, after which the project proposal is presented to the permitting
agencies as having met the approval of the state's environmental protector,
causes MEPA to fall short of the precautionary principle's ideal that would
encourage innovative solutions to the questions of how much
environmental damage is warranted, and whether less environmentally-
destructive means could meet project goals.

46. See id. ("It is left to the discretion of the Secretary to decide specifically what
project alternatives are appropriate for inclusion in a particular EIR, and those 'reasonable'
alternatives will vary depending on the nature of a project.").
47. Id. ("Here, the Secretary specifically informed University Associates that the final
EIR should respond to public comments received on the draft EIR, particularly the detailed
letter submitted by ACE, and should present additional narrative or technical analysis, as
appropriate, to respond to substantive concerns.").
48. Allen, 877 N.E.2d at 916.
The letter from ACE repeatedly and pointedly emphasized that it was
imperative for University Associates to address the issue of alternative
locations for the Biolab. The Secretary's mandate with respect to the
final EIR [that University Associates respond to the letter from ACE]
suggested that she regarded locations outside the South End
neighborhood to be "reasonable alternatives" for consideration.
Id.
49. Id. The court went on to affirm the order by the superior court vacating the
Secretary's certificate, and remanded the case to the superior court. Id.
 NEW ENGLAND LAW REVIEW [Vol. 42:847

As Justice Gants observed, "the role of the Secretary... is not to

decide whether the benefits of a project overcome its anticipated
environmental impact, or whether all feasible measures have been taken to
avoid or minimize the project's environmental impact., 50 "Instead, the
Secretary's role... 'is to ensure that a project proponent studies feasible
alternatives to a proposed project; fully discloses environmental impacts of
a proposed project; and incorporates all feasible means to avoid, minimize,
or mitigate Damage to the Environment as defined by the MEPA
statute."51
From the perspective of evaluating MEPA for its adherence to the
precautionary principle, the SJC's interpretation of the Secretary's
instructions regarding the Final EIR as altering the scope of the
environmental review retreats from the level of precautionary reflection
required under MEPA that may be elicited from the superior court decision.
The superior court opinion may be read to have condemned the Final EIR
certification as irrational on the basis of the fact that, by failing to consider
whether the non-urban siting of a BLS-4 facility significantly reduces the
risk of environmental harm, the Final EIR simply did not constitute a
meaningful environmental review that would allow the various funding and
permitting agencies to make environmentally sensitive decisions about the
project. In contrast, the SJC decision emphasizes the Secretary's discretion
and her instructions to University Associates to respond to ACE's
comments, in this way limiting the interpretation of the alternatives
analysis to the case at hand.
Indeed, in a concurring opinion, Justice Cordy of the SJC emphasized
the sui generis nature of a BSL-4 laboratory siting decision, and thus
underscored his interpretation of the court's opinion as limited to the

50. Ten Residents of Boston, 21 Mass. L. Rptr. at 330; see also id.at 329 ("The statutory
obligation of the Secretary is to issue a statement within seven days after the close of the
public and agency review period 'indicating whether or not in [her] judgment said [EIR]
adequately and properly complies with the provisions of [MEPA] ....')(quoting MASS.
GEN. LAWS ch. 30, 62C (2006)).
51. Id. at 330 (quoting MASs. Exac. OFF. OF ENVTL. AFFAIRS, ADMIN. REc. 26); see also
Allen, 877 N.E.2d at 907.
[MEPA] establishes a process, supervised by the Secretary, for thorough
consideration of the potential environmental impact of certain projects
through preparation of draft and final environmental impact reports
(EIRs), and submission of these EIRs to interested State agencies and to
the public." The MEPA review process is "concerned with ensuring that
relevant information [about potential environmental damage] is gathered
before a project is allowed to proceed [to the permitting stage].
Id.(quoting Enos v. Sec'y of Envtl. Affairs, 731 N.E.2d 525, 528-30 (Mass. 2000)
(alteration in original)).
2008] PRECAUTION AND THE BIOLAB

facts. 52 Justice Cordy also made note of the fact that University Associates
was in the process of preparing a supplemental Final EIR addressing the
two areas of deficiency identified by the superior court, and that the
Secretary expected to receive that supplemental Final EIR in February
2008. 5 3 These facts, combined with the SJC's emphasis on the Secretary's
discretion in making MEPA determinations, bring focus to the very real
potential that in the end the BSL-4 laboratory will operate in the South
End, rendering the element of precaution detectable in the MEPA process
little more than an illusion, at least in the current case.

CONCLUSION

Whether we have learned effective lessons about averting

environmental catastrophes since the Bhopal incident remains to be seen.
Earlier, this Article commented on the backlash against precautionary
environmentalist Rachel Carson. It is gratifying to note that, in contrast to
those who would compare her advocacy to that of Hitler, her teachings are
still reflected in the many ongoing efforts to reduce pesticide use and
maintain awareness about the dangers presented by chemical applications.54

52. Allen, 877 N.E.2d at 917 (Cordy, J., concurring).

I do not find that the unique issues raised in connection with this project
are likely to arise in connection with other projects .... [T]he temptation
to stretch our MEPA statute to ensure that all of the understandable
concerns of [a BSL-4 laboratory's] neighbors ... are considered in the
State environmental process, poses a risk of unintended consequences
for many projects of a different nature. . . . I write separately . . . to
ensure that the opinion is not construed more broadly than the facts of
the case before us would require.
Id.
53. Id.
Fifteen months ago, following the memorandum and order of the
Superior Court judge... the Secretary directed University Associates to
prepare a supplemental final EIR addressing both of the issues that
concerned the judge .... The studies necessary to this report have since
been undertaken by University Associates, and the supplemental final
EIR is presently scheduled to be filed with the Secretary in a few
months.
Id. In a footnote, the opinion states that the supplemental Final EIR is expected to be filed in
February 2008. Id. at 917 n.2.
54. See, e.g., Pesticide.net, Court Cases, http://www.klamathforestalliance.org/
Documents/pesticidecourtcases.pdf (last visited Apr. 24, 2008) (describing $2,000,000
settlement against Dow for false advertising about safety of pesticides in the state of New
York Supreme Court case Eliot Spitzer and State of New York v. Dow AgroSciences, LLC);
MASSACHUSETTS Toxics USE REDUCTION INSTITUTE, TURNING PARTNERSHIPS INTO
PROGRESS IN MASSACHUSETTS COMMUNITIES: A RETROSPECTIVE OF THE
 NEW ENGLAND LAW REVIEW [Vol. 42:847

And, in connection with the Biolab case, at the very least we can take some
solace in the fact that the Massachusetts courts have asserted themselves to
force the MEPA unit to require a thorough vetting of the environmental and
public health dangers that this project presents.

Toxics USE REDUCTION NETWORKING (TURN) GRANT PROGRAM,

http://www.turi.org/conmunity/grants/further information/programreports (last visited
May 22, 2008) (describing community programs from 1996-2003 that improved toxic
awareness and reduced the use of toxins).