Injunction against Rocky Mountain Greenway denied
[Follow-up to the blog entry Doomed new lawsuit will waste tens of thousands of taxpayer dollars of January 25, 2024]
(Thanks to Kim Griffiths for passing on the document distributed by David Abelson to the Rocky Flats Stewardship Council! Original here.)
In a ruling on September 8 Judge Timothy J. Kelly of the U.S. District Court for the District of Columbia denied a motion for a preliminary injunction against completion of Rocky Mountain Greenway trails within the Refuge. The findings are clear and very critical of the claims made by the consortium of anti-Refuge groups. It is possible that this may mark the end of legal challenges to public use of Rocky Flats and of the Rocky Mountain Greenway. It will be interesting to follow its effect on the position adopted by Westminster.
Anti-Refuge groups (here: Physicians for Social Responsibility, Rocky Flats Downwinders, the Peace&Justice Center) have for a long time believed their own propaganda, which they use on credulous city councils. Thus they may feign surprise when external entities flag their arguments as spurious.
“Plaintiffs, a group of environmental and public-health advocates, are concerned that radioactive contaminants persist in the local ecosystem, largely because of the discovery, about five years ago, of the colloquially termed “Bill Ray particle”—a soil sample that reflected a plutoniumlevel above the regulatory limit.” The 264 pCi/g sample containing the PuO2 particle was eventually labeled a “single outlier”.
The plaintiffs on January 8, 2024 sued the Fish&Wildlife Service and the Federal Highway Administration, requesting a preliminary injunction against proceeding with construction of Rocky Mountain Greenway trails. “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest…The last two factors merge when plaintiffs seek preliminary relief against the government.” The ruling found that neither factor was present.
The opinion continues, “And the cherry on top: CDPHE conducted its own extensive follow-up testing in the wake of the Bill Ray particle’s discovery… Afterward, it concluded that this discovery did not alter the previous scientific consensus that “Rocky Flats plutonium . . . poses a small risk, well within regulatory limits for radiation.” CDPHE reached this conclusion after learning that even Plaintiffs’ own follow-up studies yielded soil sample results “well below the . . . remedial standard. … Together, these efforts reveal that the agencies’ “look” at the issue was not only “hard”—it was rock solid.”
“Against that background, Plaintiffs remain unconvinced… On Plaintiffs’ view, rather than discuss the possible health effects from residual radiation generally, the agencies had to specifically analyze the implications of a single soil sample: the Bill Ray particle. But that analysis was unnecessary because CDPHE had already done it.”
“Plaintiffs contend that the discovery of the Bill Ray particle rendered the trail development project “highly controversial.”” For many years the Peace&Justice Center and its followers falsely claimed to represent those living around Rocky Flats. The central question is, among what groups is proceeding with trail development controversial? As I have gone to great lengths to demonstrate (via, for instance, the July 2014 poll of local Greenway support), about 80% of people living around the Refuge strongly support the trails.
Judge Kelly thankfully focussed on what a law court should emphasize. “Further, “[c]ourts in this jurisdiction suggest that . . . there must be ‘scientific or other evidence that reveals flaws in the methods or data relied upon by the agency in reaching its conclusions.’”…In other words, because “[c]ontroversy . . . is not measured merely by the intensity of opposition,” “‘something more is required’ for a highly controversial finding ‘besides the fact that some people may be highly agitated and be willing to go to court over the matter…” “And they claim that “various municipalities have either withdrawn their participation from the Greenway Project altogether or voiced vigorous support for locating the trail outside the Refuge.”. Although this might paint a picture of “passionate opposition” to the project, Plaintiffs have failed to establish “the requisite ‘something more’” needed to challenge the NEPA process.” It will be interesting to see what impact this ruling has on Broomfield, which used a fuzzy argument related to the Bill Ray particle to back out of its financial commitments to the Jefferson Parkway, and Westminster, attempting to back out of its Rocky Mountain Greenway commitments.
“Plaintiffs have not “cast substantial doubt on the adequacy of the agency’s methodology and data”… For example, Dr. Ketterer’s own soil sampling conducted after the Bill Ray particle’s discovery yielded results “well below” the remedial standard.”
“In short, although Plaintiffs “disagree[] [with] the conclusions that should be drawn from” the various studies, they have not “identified any scientific criticism of the methods or data relied upon by” the agencies.
…Relying on a previous NEPA case involving the Refuge, Plaintiffs note that because “there is an ‘increased cancer risk’ for ‘Refuge workers’ and ‘Refuge visitors,’ . . . we do not know how many workers and visitors will die unnecessarily from this exposure.”.. But the very case on which Plaintiffs rely reveals that their foreboding references to “increased cancer risks” are acontextual and exaggerated.” In other words: don’t base a current argument on an older feeble and exaggerated one.
Concerning estimated cancer rates for much more highly exposed Refuge workers, the judge noted, “These breathtakingly small rates suggest that the health risks associated with the Refuge are exceptionally low—not that they are highly uncertain or unknown.”
“Plaintiffs’ objections to that range of alternatives [in siting of the trails] do not move the needle.” “Second, Plaintiffs fault the agencies for failing to consider an on-Refuge alternative that avoids “the most heavily contaminated Wind Blown Area.”… But this argument fails because of the scientific analysis undergirding FWS’s EA. Specifically, the scientific consensus since the 2006 CAD/ROD has been that the entire Refuge—including the Wind Blown Area—is “acceptable for unrestricted use and unlimited exposure….The discovery of the Bill Ray particle, moreover, did not alter that scientific judgment. Subsequent testing confirmed that it was an anomaly, and a single, anomalous testing event cannot upend all the other scientific data.”
“Plaintiffs argue that without an injunction, there is a risk that their members may eventually develop illness or die because they could be exposed to any plutonium particles that may be disturbed by the trail development project and picked up by the wind. But when, as here, a theory of irreparable harm relies on a causal chain, a plaintiff must show that each of the “chain’s individual components—let alone the feared end result—is” not merely “possibl[e],” but “likely.””
“But as the agencies explain, Plaintiffs heap speculation upon speculation rather than prove the likelihood that each link in the chain will occur… They do not come close to establishing irreparable harm on this theory…”
So Plaintiffs “never actually point to evidence suggesting that such an incident”—the development of cancer or another illness as a result of plutonium exposure on the Reserve if the project proceeds—“is likely.”
“Finally, the hodgepodge of other asserted harms that Plaintiffs make a halfhearted effort to defend as irreparable harm do not qualify as such, either.”