Years of legal wrangling were to culminate Tuesday when the 9th U.S. Circuit Court of Appeals hears arguments about whether the Department of Homeland Security should be permitted to open the lab at Lawrence Livermore National Laboratory, about 50 miles east of San Francisco.
The new facility would test some of the deadliest toxins known to man in simulations of terrorist attacks. Construction is complete, and the facility is set to open by August, said John Belluardo, spokesman for the Department of Energy's National Nuclear Security Administration.
Its actual mission is a matter of some dispute.
Opponents, citing government documents, said in court filings it would "aerosolize" the bioagents "in order to speed the efficiency by which they could kill and spread disease." And if the agents escaped into the air, it could be catastrophic, killing hundreds or thousands, they say.
"If these bioagents are released into the environment in significant quantities, they could cause massive human mortality within the densely populated San Francisco Bay Area," the opponents wrote in their court brief. That scenario was "never modeled nor considered" by the Bush administration in its safety assessments, the opponents say.
The lab sits in a region under which several faults lurk, and the lawsuit warns an earthquake could trigger the release of potentially deadly agents in the densely populated East Bay region near San Francisco. Some 7 million people live in the broader bay area.
Spokesmen for the government and Lawrence Livermore don't dispute the lab would produce airborne pathogens. But they firmly deny that advancing biological weapons is the facility's aim, pointing out the United States signed the 1975 Biological and Toxin Weapons Convention, a treaty that banned the development, production and stockpiling of bioweapons.
Also, they say the Department of Energy's environmental assessment found no serious risk of an accident.
The facility "will significantly improve the nation's ability to detect and respond to the threat of terrorism using biological agents," the Department of Energy said in its court brief. A court order blocking it "would directly and adversely impact the national security," the administration said.
The facility would test the agents, which could also include hantavirus, influenza, hepatitis, Q fever, brucellis, herpes and salmonella, among others, on live animals.
Two groups representing area residents and other project opponents, Tri-Valley CARES and Nuclear Watch New Mexico, asked a federal court to block the project in 2003. Their lawsuit argued the Energy Department failed to follow the provisions of the National Environmental Policy Act by moving ahead without a full environmental impact review.
The lawsuit also argued that the Energy Department, which began research on the site before the Department of Homeland Security took it over, failed to comply with the Freedom of Information Act by failing to turn over certain documents to the groups.
A federal district court judge sided with the Bush administration in 2004, saying the administration had not violated the two federal laws. The project's foes appealed, saying the lower court had improperly excluded critical evidence and wrongly interpreted the National Environmental Policy Act.