Judge dismisses lawsuit objecting to Kansas location of biolab

A federal judge has dismissed a lawsuit by a Texas consortium protesting the DHS’s choice of Kansas for a multimillion-dollar biodefense laboratory.

The judge decided that the lawsuit was premature and dismissed it without prejudice, opening the way for the Texas Bio- and Agro-Defense Consortium to refile the lawsuit later, which the group said it might do.

The New York Times reports that details of the judge’s decision were temporarily sealed. Judge Mary Ellen Coster Williams of the U.S. Court of Federal Claims said in a hearing this month that the lawsuit seemed premature. She said the laboratory might never materialize and noted that a deal had not been struck for Kansas to provide land in Manhattan for the laboratory. The Kansas Board of Regents has agreed to provide the land, but the Homeland Security Department has not signed that agreement.

“Instead of saying ‘no,’ the court simply said ‘not yet,’ ” Michael Guiffre, the Texas consortium’s lawyer, said on Friday. “We’ll be right back where we started as soon as DHS figures out what it is doing.”

The Texas group had contended that the department ignored the region’s high risk of tornadoes and that the site selection had been tainted by politics.

Texas was one of six potential sites for the laboratory. The Kansas site was recommended unanimously by a panel of officials from DHS and the Agriculture Departments and was chosen in a transparent process, a DHS spokeswoman, Amy Kudwa, said. Kudwa declined comment on the judge’s decision because of the possibility of another lawsuit.

The project is intended to replace an aging laboratory at Plum Island, New York, where foot-and-mouth disease research has been done since 1955. By law it has been confined to the island to avoid an accidental outbreak that could lead to the slaughter of millions of livestock. Other deadly diseases are also to be researched at the laboratory.

DHS hopes to award a contract estimated to be worth at least $525 million by September and to break ground on the laboratory next summer.

Congress may slow that schedule by withholding money or at least requiring the department to study the risk of moving foot-and-mouth research to the heart of the country before it can start bidding a construction contract.

In arguing for the dismissal of the Texas suit, a Justice Department lawyer had to persuade the judge that construction of the laboratory at the Kansas site was not yet settled.

Jim Dublin, a spokesman for the Texas consortium, said the department “is leading us down the rabbit hole by claiming it does not know how, when and if it will build the bio-agro research facility in Kansas” even though it has said it chose Kansas.