Suitable for Fisking, here is the labor of a week
Unofficial transcript of hearing of 08-17389 which is the appeal of the ruling by Judge Gillmor which dismissed the case of Luis Sancho and Walter Wagner versus US Dept. of Energy, National Science Foundation, etc. concluding that "
The Court lacks jurisdiction to adjudicate this action. Defendants’ Motion to Dismiss (Doc. 14) is GRANTED."
Held 9:00 AM Hawaiian Standard Time at Suite 601 at 1132 Bishop Street, Honolulu, Hawaii.
J1:
Betty Binns Fletcher
J2:
Harry Pregerson
J3:
Richard R. Clifton
WW: Walter Wagner
LS: Luis Sancho
JA: John Arbab
00:00 WW: Your Honor, I'm Walter Wagner. I'm one of the plaintiffs (for?) Luis Sancho, sitting there. We want to spend our time, five minutes each, maybe a little less. We flipped a coin, I go first.
Critic said:
Is Wagner telling the truth when he predicts five minutes each? Was there a literal coin flip? Wouldn't a strategy planning conference or in the 19 months since this appeal was filed be better than a coin flip?
00:09 J2: Okay.
00:13 WW: Welcome to Honolulu. It's my home community here, though I did fly in from Utah, Doctor Sancho flew in from Barcelona, Mister Arbab flew in from Washington D.C. and I understand you folks flew in from San Francisco, so it's a nice place to meet for discussing the Large Hadron Collider in Switzerland.
Critic said:
In what sense is Honolulu Wagner's home community? Why does he pronounce Hawaii like a mainlander? What is the nature of Sancho's Doctorate, since this is not explained on paragraph one of his affidavit and is not properly before the Court? Also, how is Sancho's flight in from Barcelona consistent with his being a "resident" of the United States and that this was specifically called out as a reason why he we supposed to have standing?
00:36 WW: I'm going to recapitulate where we are with the situation of the Large Hadron Collider. As this Court might be aware, in the fall of 2008 there was an unlikely accident that occurred. It basically destroyed the machine -- or large portions of the machine -- and it was shutdown for repair for about a year and a half. And retrofit re-modification so that they won't have that happen again. It is now currently operating at half energy. It has not yet entered into the regime of engaging in dangerous collisions of the kind we have sought to enjoin. That is anticipated to occur this coming winter if no action is taken.
Critic said:
Wouldn't "expensive failure of electromagnets and related circuits during pre-operation testing" be a far more accurate statement than "unlikely accident" that "basically destroyed the machine" ? And if it basically destroyed the machine, why didn't it take $5 billion or more to fix it? All parts of this machine are large as seen in the popular press coverage, but was the percentage damaged large or small? How is it determined that "half energy" operation will not engage in "dangerous collisions" when you sued RHIC for operating at even lower energies? Do you have any model of disaster at all, or are you just making up claims to keep yourself in the court and in the press?
01:22 J1: Try to explain to us exactly what role the United States plays in all this. I understand it has something like a ten percent interest, is that right?
01:36 WW: Yes, Your Honor. The United States has funded approximately ten percent of the construction costs and it continues to fund the operational costs of some of the experimentation that is anticipated to be taken there.
Critic said:
The
August Strauss Declaration names the CMS and ATLAS detectors in paragraph 11 but emphasizes that title and control of the LHC is CERN's.
01:51 J1: And could we enjoin anything more than further monetary contributions? We don't .. The United States doesn't have any role in the operations, is that right?
02:05 WW: It does have a role in the operation. The experimentation cannot proceed -- or the operation is essentially moot -- if the United States' involvement in the experimentation is not there. There are four experimental chambers, which the United States operates two of them. So that is the machine and the experimental chambers and they are integrated with each other. One can't operate without the others. So the United States operates two of those experimental chambers and continues funding on that. In addition, the equipment that the United States has already funded -- paid for -- that is sitting there, the United States has an obligation to maintain that should there be repairs, and so forth, of that equipment for the machine itself.
Critic said:
In addition to the two other perfectly-good detectors, operating LHC teaches us many things just about operating large accelerators. Indeed, without the schedule of experiments for ATLAS and CMS, might not the LHC be freer to run at full power sooner? Explain in detail how leaving the detectors unmonitored causes the LHC to be unable to run because that makes no sense.
03:00 WW: (aside to LS) Sure. In a minute.
03:03 WW: Anyway, does that answer your question, Your Honor?
03:06 J1: Well it's quite unclear to me exactly .. If we said "United States, get out of this, you can't participate any further," would the proceedings go ahead with the other participants?
03:22: WW: We don't know what they would do. They might continue, but they would not be able to continue in the manner in which they are doing. The United States additionally has jurisdiction, Your Honor, under the Patriot Act, and under the United States Code Section 831 over nuclear substances, where the United States can intervene in actions in foreign countries, that involve threats to US Citizens, involving nuclear materials. And this essentially what this is, they are ..
Critic said:
According to both Strauss declarations, US scientists are Federally funded at $0.01 Billion/month. Many governments could fund that. Several private companies could. The
USA PATRIOT Act is a laundry list but what isn't provided is a statue citation. Presumably USC Title 18 Section 831 is meant, but that law defined nuclear substances to be other than proton-proton or even lead-lead collisions and therefore does not apply. Neither were cited in the original court case and neither was briefed on appeal and therefore it is too late to bring them now to the appeal of dismissal. Wagner is trying to re-try the case here when the maximum outcome is a reversal of the dismissal.
03:49: J3: So you're asking us to authorize an invasion of a ..
03:52: WW: Absolutely not.
03:54: J3: I have real trouble understanding exactly how the Patriot Act applies to this.
03:59: WW: Well the Patriot Act confers jurisdiction over anything that's going on, anywhere in the world, essentially, that involves ..
Critic said:
04:06: J3: Jurisdiction in Federal Court?
04:10: WW: Does the Federal Court have jurisdiction over the US Military? I believe it does. And the US Military they have armies all over the globe under the Patriot Act.
04:19: J3: Who had the power to tell the military what to do? Is this a general, broad proposition?
04:26: (Confused)
04:27: J3: I understand that you don't practice law, but you went to law school. Doesn't that sound like a pretty unlikely broad proposition? We are a court of limited jurisdiction. What is the source of our authority that you want us to use?
04:39: WW: The source of the authority for this court to use is the NEPA, Your Honor, as is detailed in the briefing, The National Environmental Protection Act. This is essentially the same source of authority that would give this court jurisdiction over British Petroleum when they sought to obtain a drilling permit from the Marine Management Service, arguing that they should be exempted from NEPA because of the unlikely scenario of having environmental disaster and that argument has ..
Critic said:
Has Wagner abandoned the USA PATRIOT Act and "Section 831" already? It's the Department of the Interior's Minerals Management Service. And BP apparently didn't argue any such thing at all. "BP received approval for its Deepwater Horizon operations under a NEPA categorical exclusion, which allows MMS to greenlight oil and gas exploration and development activities without companies needing to submit an environmental assessment or environmental impact statement, as typically required under NEPA."
http://www.law360.com/articles/175351 So Wagner's conjectures about BP are wholly unsupported and contradicted by facts.
05:10: J2: That's the reason. They brought that up as a reason for being excused from the obligations of NEPA, but ..
05:20: WW: Yes, that's essentially the same argument …
05:22: J2: .. we certainly have control over the Gulf.
05:26: WW: Yes, we do. And ..
05:30: J2: We don't have control over Switzerland.
05:31: WW: We do over money that flows into Switzerland, and that the control we're asking .. Essentially, that's all we're asking is that the US stop its funding. We're not asking that the US go in and invade Switzerland.
Critic said:
Has Wagner abandoned the USA PATRIOT Act and "Section 831"? It sure looks like it was a random statement and not part of a major strategy.
05:42: J1: Yes, that's .. Has there been any NEPA review?
05:48: WW: There has been no NEPA review. And that's what we're asking: that this Court uphold the law and force NEPA and allow it. I'd like to let Doctor Sancho use his five minutes if I may.
Critic said:
But Wagner did nothing to address the
District Court's Analysis of why NEPA does not apply. Further, Wagner doesn't explore that LHC environmental analysis has been done -- just not under US Law, since it is outside of the US. Of course since that's a real analysis by real experts with real concerns, they are mostly about the lethal beam energies and how not to kill people while building and operating the LHC.
06:02: J2: Alright.
06:05: LS: I was intending to convey a longer statement, but there's not much time here. On your question on jurisdiction, I can disagree jurisdiction according to NEPA I and can give comparison with the British Petroleum which I feel is clear. If there is a stream of black holes or stranglets in this machine, there is no way to stop that, there is no safety measure taken by this company. That's why the company is denying the risk.
06:36: LS: I want to stress four points. The truth, the explosive truth about this machine, is that is it both a research machine and experimental weapon, in the sense that this machines are used to create nuclear explosives and exotic particles that come out of that.
Critic said:
Sancho doesn't have any connection with the truth. Don't you have to be able to point a weapon? Where is the door on the LHC which allows one to remove the created nuclear explosives? There is none, since it all operates at high vacuum conditions. Sheesh!
06:56: LS: A question with us new nuclear explosives in this machine is that the two nuclear substances we fear, black holes and strangelets, they also feed in bombs that fuel in the mass of the Earth. They provoke supernova explosions and big bangs. So if there is a stream of those substances, and there's a lot of theoretical work backing it by Mister Einstein, who is the founder of the theory of black holes, and quark strange condensates -- this firm denies and it's bringing a series of theories who are not proved like Mister Hawking who denied Mister Einstein. It is standard science which is the science which should be uphold in Court.
Critic said:
How do black holes provoke supernovae and big bangs? Textbook citation please, since this is allegedly "standard science." Professor Einstein didn't solve his own equations in the spherically symmetric case, Schwarzschild did but "
Einstein himself vigorously denied their reality, believing, as did most of his contemporaries, that black holes were a mere mathematical curiosity. He died in 1955, before the term "black hole" was coined or understood and observational evidence for black holes began to mount." and likewise
even unstrange quarks were not hypothesized until 1964. So it seems Sancho is no historian of science and neither does he have a grip on what is the practice of science. Being an outsider to the methods of science, he is not qualified to give opinion on what is "standard science" and all of this amounts to his personal ignorance being paraded as if it were expertise.
07:40: LS: It's right. Any stream of those substances will provoke the destruction of the Earth, because those substances will fall to the center of the Earth and feed on the matter of this planet. That's why, unlike British Petroleum that is trying to cut this thing, there is no way to cut this thing. That's why there, for me, a series of NEPA obligations which they didn't follow the company and by (unintelligible) There needs to be a new law which ask for a panel of independent scientists to evaluate the risk of this machine -- they were not also follow because there is actual risk there is only possibility of denial. Denial of the risk, denial of the standard Einstein theory of black holes, and of course denial of any standing authority to the company.
Critic said:
In the much-quoted Scientific American letter, the possibility of Einstein's "standard science" black holes being formed at any terrestrial collider is correctly calculated as zero, and even if a 14 TeV General Relativity black hole was formed, its gravity would be negligible and its cross-section with matter too close to zero to measure. Rather than fall to the center of the Earth, it would flit through like a neutrino -- even in the case where you hypothesize it was produced at zero momentum in the lab frame. BP wishes its problems were like 14 TeV GR black holes, because then everyone would ignore them.
08:34: LS: The possibility of applying the (Statute?) of US Code Section 831 which states quote "the nature of nuclear contamination such that it may affect the health, environment and property of the United States nationals, even with the act that constitutes legal activity outside the territory of the United States and primarily directed towards foreign nationals." So even in a foreign territory, the Unites States, if there is a huge risk, as there is in this case, could interfere. Of course, I don't ask for a political intervention ..
Critic said:
09:10: J3: What can the Court do to redress the problem that you've identified?
09:15: LS: Well, (unintelligible) say that this will be a risk for politicians which is what I think. So, if the politicians knew the truth both in Europe, our allies, and here in America, they will at least politically and administratively ..
09:29: J3: I can't tell politicians what to do. As a judge, I don't have the power to say "You politicians, you enact this law or you face the sanctions .."
09:37: LS: I know. I know. But a positive jurisdiction .. suit on this matter will alert politicians. They say set up a study review of independent scientists, and realize this is a nuclear company, which a lot of interesting .. interest .. scientific interest, bureaucratic interest. That international responsibility to the laws of NEPA, to the obligations of environmental laws in Europe, is lying to the public, and is just living like (unintelligible) company.
Critic said:
Both Sancho and Wagner want to be able to say anything and have it be accepted as fact. Too bad that their job at this hearing is to argue from the established facts for the simple proposition that their case should not have been dismissed for lack of jurisdiction, for lack of standing or for mooted. (Wagner asserted that the LHC operating as "half power" should not moot his case, but supported that claim with no facts or even argument.)
10:07: LS: They keep a big risk our lives and expecting that nothing happens. There's no (compassion?) in this company. No safety at all. The only thing we ask the court, is to accept jurisdiction in the NEPA because they did violate NEPA. Allow this to become a serious matter, because it is a serious matter.
10:28: J2: Are you acquainted with the doctrine of standing? Of standing?
10:36: LS: Doctrine of standing?
10:37: J2: Standing to sue.
10:40: LS: I do not understand your question.
10:41: J2: It looks like your partner does.
Critic said:
Appearances can be deceiving.
10:45: WW: Your Honor, I'm familiar with the doctrine of standing. Yes, I am. We have standing to sue because we are citizens of .. I am a citizen of the United States. Doctor Sancho, even though he is not a citizen of the United States, he is a resident of the United States. So we have standing under NEPA.
10:59: J2: You think that being a citizen of the United States gives you standing?
11:04: WW: Ah.. It.. It.. (unintelligible) No.
11:05: J2: You think any citizen of the United States can come up here and say "I'm a citizen of the United States,"
11:11: WW: No, that's not what I'm saying. The standing arises from the fact that this activity in Switzerland will affect me here in the United States, even here in Hawaii where the suit was filed because this .. should it create this kind of a condition of creating strangelets it would affect me here in Hawaii. And that's what gives me standing. Not the fact that they're doing something in Switzerland, but that what they're doing in Switzerland can affect me here in Hawaii. That's what gives us standing.
Critic said:
The Government raise standing in trial court back in 2008. Surely by now Wagner could have read a book on the topic.
11:45: J2: There's an element of speculation there, is there not?
11:48: WW: It's a fifty-fifty so far as we know. There's an element of speculation on the part of Doctor Sancho as well.
Critic said:
Hint: Speculation is bad when you are trying to establish an injury. And without a concrete and particularized expectation of injury, you have no standing to sue.
11:53: LS: Please. Standard science in this case is Mister Einstein. This is not speculation. It is standard science. When we switch lights, lights come always on. This is standard science. Speculation is what CERN is saying. Mister Hawking is not (unintelligible) has never been proved. And Mister Einstein says that they will destroy the Earth. So speculation is on the side of CERN.
Critic said:
But Einstein says there are no black holes, even though his physics say there are. And lights don't always come on. Since Hawking basically wrote a theorem, it has been proved multiple ways. Einstein certainly never said that they will destroy the Earth. Citation, please!
12:19: J2: Let's hear from the Government now.
12:21: WW: May I read one very brief quote that was in the Amicus brief?
12:24: J2: I can't say stop you because you look a little like Judge Reinhardt.
12:29: WW: I apologize for that, Your Honor.
12:32: J1: That's exactly what I thought.
12:34: WW: Your Honor, I feel sorry for his family. Then, let me read very briefly from what
Sheldon Glashow wrote. "The strangelet disaster scenario described by Glashow and Wilson would only be credible if strangelets exist (which is conceivable), and if they form reasonably stable lumps (which is unlikely)," -- that's the weasel word -- "and if they are negatively charged (unlikely" -- again the weasel word expressing fifty percent chance -- "given that current theory strongly favors positive charges), and if tiny strangelets can be created at RHIC" // "then there just might be a problem. A newborn stranglet could engulf atomic nuclei growing relentlessly and ultimately consuming the entire Earth." Okay, that was from the Amici Curiae Sheldon Glashow and Robert Wilson co-authored a paper "Taking Serious Risks Seriously" in Nature Magazine that was then quoted in the Amicus brief. From that ..
Critic said:
I bet you were confused why Wagner was quoting from the brief of the Nobel Laureate Amici who opposed Wagner. He's actually misquoting from the
1999 Nature opinion piece and leaving out the central evaluation: that the chances of creating stranglets at RHIC is "exceedingly unlikely." Sheldon Glashow and
Richard Wilson reuse much of this sentence (with citation) in their Amici brief with Frank Wilczek, but go on to point out that not only no strangelets were formed at RHIC but that is less likely that LHC would form any. Why does Wagner even bother to pretend at this point, no law, no physics and no calculation back up his claims.
13:29: J2: You went to school, where?
13:31: WW: I went to a lot of places. I teach school and I went to school at UC Berkeley as a physics major, initially, degree in Biology.
13:41: J2: And where did you go to law school?
13:42: WW: I went to law school in Sacramento, several schools. McGeorge School of Law, Lincoln University, Lorenzo Patino School of Law.
13:53: J2: Because you sounded like a Berkeley guy.
13:57: WW: I don't know if that's a compliment, Your Honor. I take that as a compliment.
14:01: J2: I'm a Berkeley graduate.
14:03: WW: Yes. No, and I did graduate research at Berkeley and then I went to another .. I was probably on the Federal payroll before you were.
14:10: J2: Oh, yeah? When did you ..
Critic said:
The highlight of the hearing.
14:14: WW: 1979.
14:16: J2: I've been on the payroll since 1941.
Critic said:
Pearl Harbor is never very far away ...
14:20: WW: I apologize. I take it back. Okay. But it's been a while.
14:26: J2: What?
14:27: WW: It's been a while.
14:28: J1: Thank you ..
14:29: J2: You know, it's .. when did you start?
14:33: WW: When did I start what?
14:34: J2: 1970-what?
14:35: WW: Law school?
14:36: J2: No, on the payroll.
14:37: WW: '79, yeah. It's been a while.
14:39: J1: Thank you
14:41: J2: And you're paying your taxes?
14:43: WW: Yes, I got off the payroll after 5 years.
14:45: J2: Okay. Alright
Critic said:
Now if I were the judge I would feel kind of disgusted that someone would put up "5 years" against the lifetime of Federal service that he had.
14:47: WW: Thank you, Your Honor. The gentleman here has been on the payroll, I don't think since '79, certainly not as long as you.
Critic said:
Your his civil opponent in Court, Wagner. Not a smarmy master of ceremonies.
14:56: J2: Well..
15:03: J2: You're carrying the future of the .. fate of the future of the world on your shoulders.
15:10: JA: I feel like I have a great responsibility here this morning, Your Honor, and I only have ten minutes in which to discharge it. I'm John Arbab on behalf of the ..
15:19: J2: Einstein said, I think, that, y'know, time isn't a factor.
15:26: JA: Right, time is
15:27: J2: Relative.
15:27: JA: It's relative and the clock can always keep running.
15:30: J2: It's irrelevant, really.
15:32: JA: If I might ..
15:33: J2: That's what I tell people when I'm late.
15:37: J1: Which is constant.
15:40: J2: I'm a constant force.
Critic said:
Joking from the bench is almost all the rest these judges are going to get.
15:42: JA: Your Honor, I would like to try to refocus on the legal issues that are actually involved in this appeal. As the Court ..
15:51: J2: What about standing, you want to address that?
15:52: JA: I would like to because that's the first issue that really must be addressed. As we discuss in the brief, there's a serious standing problem with the plaintiffs ability to bring the suits based on redressibility and causation requirements of Article III standing. The basic problem is that the suit seeks an order from a Federal Court enjoining further operation of the LHC. The problem is that the only entity with authority to do that is not any of the Federal defendants, but CERN, who is not a defendant in this case. So the harm.. the alleged harm.. the operation of the LHC is not fairly traceable to either of the Federal appellees.
16:40: J1: Can you explain to us the structure and what participation the United States has. Apparently, it operates a couple of experimental laboratories.
16:53: JA: Your Honor, there's some confusion in the briefing about this but I think the facts are pretty simple. According to the record,
17:00: J2: Speak up just a little.
17:02: JA: The facts are pretty simple. There's been some confusion in the briefing about this point. First of all, as the District Court found, the two Federal agencies here, the Department of Energy and the National Science Foundation, contributed a very small amount of the total construction costs of the LHC. Less than ten percent.
17:22: J3: A very small proportion. I have difficulty saying it's a small amount. It's over a half billion dollars.
17:30: JA: It's about five hundred and thirty million dollars, Your Honor, but under the Circuit's case law, the relevant comparison is not just the figure in the abstract, it's how it measures up compared to the total expenditure of all parties, including the non-Federal contributors. And here, as in many of the Court's cases, like Rattlesnake Coalition, Ka Makani, Friends of the Earth, the percentage of the Government's contribution is ..
17:56: J3: Is there any case where the number of dollars is in nine digits that's been held to not be a Major Federal Action?
18:04: J3: I just don't think that's your strong point with regard to standing.
18:07: JA: Your Honor, the .. this issue would not go to standing. This goes to whether the LHC is a Major Federal Action, which would be the merits issue, assuming that one of the plaintiffs had standing.
18:20: J2: You were talking about standing.
18:22: JA: Yes, I was just answering Judge Fletcher's question as to the exact nature of the Government's involvement in the project. So there's the construction .. the small percentage of construction funding which is less than ten percent. And the relevance of that is, as I said, Major Federal Action is not indicated where such a small percentage is Federal funding.
18:42: J1: I guess I'm more interested in what operational things that it currently is doing.
18:48: JA: Yes, Your Honor. As we discussed in the brief, and is detailed in the Declaration of Doctor Strauss, the Department of Energy has, subject to funding from Congress, has in the past, in Fiscal Year 2009, allocated some monies towards support of US scientists doing research on two of the four detectors. But that's completely unrelated to the graviment of the suit which is that the Plaintiffs don't want the accelerator itself to operate. The accelerator operates irrespective of whether the US scientists participate in research on two of the four detectors. And that's quite clear from the Strauss Declaration. He states that even if ..
19:42: J2: Could you speak a little louder?
19:43: JA: Yes, Your Honor.
19:42: J2: There's been a Big Bang, and all I hear is a whisper.
19:47: JA: I'm sorry. The Strauss Declaration makes clear that even if the US scientists, who were doing research on the two of the four detectors, packed their bags and went home tomorrow the LHC would still continue to operate. It's not as if this kind of support for US researchers has any effect on whether the LHC will continue to operate or not. So that fact is relevant for two reasons. As to standing, it only reinforces the problem with repressibility and causation. And, secondly, it also reinforces the point that the LHC is not a Major Federal Action because it indicates that Federal agencies have no control or authority over whether the LHC continues to operate. They fund some scientists doing research on the detectors, and that's it.
20:45: JA: So, based on the record that was compiled before the District Court, it's quite clear that neither plaintiff had standing even assuming that Mister Sancho is still an appellant, involved in the case on appeal.
21:08: JA: I think the only other point that I would like to make, unless there are further questions, goes to the Major Federal Action question. Even assuming that at least one of the Plaintiffs had standing to bring the suit, they're asking that NEPA be applied here. And NEPA is not applied, does not even trigger, unless the project at issue is a so-called Major Federal Action under the text of NEPA.
21:38: JA: Here the District Court properly found that the two important guideposts come to make a Major Federal Action question cut in favor of a conclusion that the LHC is not a Major Federal Action. Again the first factor being the minimal amount of Federal funding as a percentage of the whole, and secondly the fact that the Federal agencies have no control over the operation or management of the LHC, that authority being vested exclusively in CERN, who was not even a Defendant here.
22:13: JA: So unless there are further questions, I would just ask that the judgement below be affirmed.
22:22: J2: (aside) Do you have another question?
22:24: J2: Thank you.
22:25: JA: Thank you.
22:28: WW: I'm not certain if I used up our ten minutes. I would like to take one minute for rebuttal, if I may?
Critic said:
How can you not be certain when the red light went on before you misquoted Nobel Laureates?
22:34: J2: The Government cedes two minutes to you.
22:38: WW: Thank you. So.. Wonderful!
22:42: WW: The (unintelligible) is a defendant. CERN is a defendant. CERN as a defendant defaulted at the trial court level -- did not appear in court -- but it is a defendant. And basically, they did not want to show up and argue their case. So..
Critic said:
What basis does Wagner have for knowing what CERN (an organization) wanted or did not want?
22:58: J2: They weren't properly served.
Critic said:
Snap! That's what I've been saying.
23:00: WW: That's what they .. Subsequently, the Government has complained that they were not properly served. And we never really delved into that issue in depth at the trial court level because it went up on appeal before we did so. I believe that they were properly served, but we could go serve them again if it gets back to the trial court .. or when it gets back to the trial court.
Critic said:
Remember when the District court asked you about the Hague Convention? I do.
23:23: WW: And as to standing, yes, the Government has conceded that the US Government is continuing to fund two of those four detectors, and those are integral parts of the operations -- there is no point in operating the machine if you aren't going to have the detector there. It's integral to it and so it's sort of like having the car wheels …
Critic said:
What is your basis for claiming that the detectors are integral? Why can't the LHC operate with less than three detectors? Also, I think this analogy needs work.
23:44: J3: Could someone else fund those portions of the project?
23:48: WW: Pardon?
23:49: J3: Could somebody else fund those portions of the project?
23:51: WW: I'm sure that other persons could always step in. The US could have never funded it in the first place .. maybe something might have happened. But that still aren't that facts of what did happen.
Critic said:
Note -- Wagner is assuming that the Federal Court has a time machine and can go back and unspend money.
24:03: J3: I think (unintelligible) Now wait a minute, Son. What we are dealing with here is a question of whether the United States has a finger on an on/off button. Do you concede the United States does not have a finger on the on/off button?
24:15: WW: It does. Very much so, because if the detectors are off, the machine will ..
24:20: J3: You just told me somebody else could fund that.
24:23: WW: May.. (elbow!)
24:27: LS: According to the administrative rules of CERN if this huge quantity of five hundred.. half billion dollars disappears, it will be entirely settled of all the systems. It will have to appear money from the European Union which is not very interested in giving more money for this thing. And so it will really halt the machine and put the issue into the scientific community. So it will really effect tremendously this machine. It won't work.
Critic said:
Note -- Sancho is assuming that the Federal Court has a time machine and can go back and unspend money and unbuild the LHC.
24:57: WW: Essentially, Your Honor, we want to be asking this Court to issue.. to send it back to the Trial Court for the Trial Court to issue injunctive relief if we can get it to do anything. We're very confident that should the Trial Court issue injunctive relief ordering a NEPA .. or affirming that NEPA was required, that they need to follow NEPA -- we don't know what the outcome of NEPA will be, it might very well be that Okay, we go through all the procedures and everybody's on-board with taking that risk, then that would be the outcome -- but we don't know what that outcome would be. That's so with British Petroleum, perhaps if they went through NEPA procedure everybody would have gone on-board with Let's-take-the-risk. But that's not saying that that's what the law is. The law requires that this be reviewed. Thank you, Your ..
Critic said:
Okay. Here is where Wagner is reducing NEPA from being a firewall to being a bureaucratic hoop-jumping exercise -- precisely the type of administrative law that can't give rise to redressible injury for already spent money.
25:37: J2: (unintelligible) whole sentence.
25:40: WW: Thank you very kindly for your time, and I appreciate your cordiality.
25:44: J3: Oi, thank you. Interesting. And the matter is submitted and we'll call the next matter. United States of America versus Bihno Tanaka.
26:00: (Various people exit the room)
