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Judge Dismisses Texas Consortium's NBAF Lawsuit, Sides with DHS on 'Ripeness' for Judicial Review

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By Alex Philippidis

A federal judge on Friday dismissed a Texas consortium's lawsuit seeking to stop the $523 million National Bio- and Agro-Defense Facility from being built in Kansas, as planned by the US Department of Homeland Security.

US Court of Federal Claims Judge Mary Ellen Coster Williams dismissed the suit after siding with legal arguments by DHS that the suit by the Texas Bio and Agro-Defense Consortium was based on hypothetical or contingent claims, and thus not "ripe" or suitable for judicial review.

"The site selection is not ripe for judicial review because Congress must appropriate funds for DHS to build the NBAF or else Kansas (or any other location in the country for that matter) will not be the site for the NBAF," DHS argued in a July 9 Supplemental Brief With Respect to Ripeness. "Without Congressional appropriation for construction funding, the NBAF will not be constructed in Manhattan, Kansas, or anywhere else for that matter."

Congress is still debating NBAF's funding. Last week the Senate passed the Department of Homeland Security's budget for FY 2010, which set aside $36.3 million for NBAF, subject to certain conditions. The House, meantime, approved a DHS budget with no funding for the facility "until the Secretary of Homeland Security receives a risk assessment prepared by a person who is not an officer or employee of the Department of Homeland Security of whether foot-and-mouth disease work can be done safely on the United States mainland." [BRN, July 10, 2009]

Also not ripe, according to DHS, is the planned donation of land by the state of Kansas to the Heartland BioAgro Consortium, the group of government and industry leaders that successfully persuaded the homeland security agency to award NBAF to the Sunflower State over competing proposals from Texas, as well as Georgia, Mississippi, North Carolina.

"Although KBR intends to convey approximately 48 acres of land to DHS by quitclaim deed as a gift, that proposed course of action is subject to a reversion, if the land is not used to build the NBAF," DHS argued in the supplemental brief. "The proposed gift clearly contains a future contingency."

Coster Williams did not forbid Texas re-filing the lawsuit at a later date, once the issues were found ripe.

"We will be evaluating that over the next few days. It's still too early to digest all of this and make decisions on it," T. Michael Guiffre of the Washington, DC, law firm Patton Boggs, told BioRegion News.

The Texas consortium expects DHS and Heartland BioAgro to formalize soon a memorandum of understanding laying out details of the state transferring or gifting the land to the consortium for construction of NBAF.

"That was going to be executed this week or next week, so that should be done very quickly. Then it's a question of how you interpret the court's decision. Do we need to wait for Congress to appropriate money to construct [the biolab]? We may not need to. We may be able to go to court sooner," Guiffre said.

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