The Rise and Fall of the Third ICF Review
A Case Study of Bias and Conflicts of Interest in a National Academy of Sciences Review of the National Ignition Facility
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Under the sponsorship of Office of Defense Programs of the Department of Energy (DOE), from May 1996 through March 1997 the National Research Council (NRC) of the National Academy of Sciences (NAS or "Academy") organized and supervised the activities of a Committee for the Review of the Department of Energy's Inertial Confinement Fusion Program (henceforth "the NRC-ICF Committee"). The rise and fall of this committee epitomizes in a compelling way the kind of occasional serious abuses that Congress sought to guard against when it created the Federal Advisory Committee Act (FACA) in 1972. Until recently, federally financed advisory committees managed independently by the Academy, under contract to a sponsoring agency, had never complied with FACA, despite the fact that such committees clearly fit FACA's description of committees "utilized" by an agency to provide advice which the agency relies upon to make decisions.
In response to a legal challenge brought by NRDC and two co-plaintiffs in March 1997, the D.C. Federal District Court has permanently enjoined DOE from relying on, disseminating, or continuing to support the NRC-ICF Committee's work, on the grounds that the Committee was formed and operated in violation of FACA. The Academy itself, however, was not enjoined from publishing the report, and hence its independence and first amendment rights were not at issue.
In summary, the major results of this case study are as follows:
- In September 6, 1995 the DOE Office of Defense programs secretly decided to dissolve its only ongoing advisory committee under FACA -- the Inertial Confinement Fusion Advisory Committee (ICFAC) -- and soon thereafter began confidential discussions with Academy staff regarding a new ICF committee under NRC auspices. Members of the ICFAC and the public, however, were not informed of this decision until two months later, a week before ICFAC's last scheduled meeting.
- According to internal DOE memoranda and viewgraphs, the two principal "ICFAC Weaknesses" identified by the DOE Office of Defense Programs were that it was "restricted by legal requirements (FACA)" and "perceived to lack understanding of science-based stockpile stewardship," the DOE's multi-billion dollar program for maintaining the skills of the nuclear weapon design laboratories under a Comprehensive Test Ban Treaty.
- A centerpiece of this new program is the National Ignition Facility (NIF), a $1.7 billion laser fusion machine the size of the Rose Bowl now under construction at the Lawrence Livermore National Laboratory (LLNL). The technical and scientific readiness of the NIF project to achieve its design goal of fusion ignition had come under increasing scrutiny by the ICFAC, which at the time of its dissolution was intending to reconstitute a Target Physics Subcommittee to probe more deeply the sensitive issue of whether technical confidence in the achievement of ignition was sufficient to warrant proceeding to the construction phase of the project, then scheduled to begin in about one year.
- A November 1995 letter from Secretary O'Leary explained that the basis for abolishing ICFAC was that "[t]he program is now entering a new phase of broader scope as an integral part of the Department's science-based stockpile stewardship of nuclear assets . . . the limited scope of the committee restricts its usefulness."
- Left unsaid was the fact that this "new phase of broader scope" was expressly designed to finesse the critical issue of confidence in fusion ignition, because many of the NIF's more recently acquired "stockpile stewardship missions" do not require ignition. Also left unsaid was the DOE staff's conclusion that, along with its expanded scope, the principle virtue of a new Academy committee would be its freedom from FACA's openness and balance requirements.
- Lest there be any doubt regarding DOE's true motivations in dumping the FACA Committee, a December 1995 memorandum from the ICF Program manager states, "A major review of the ICF program is needed in this fiscal year to reaffirm mission need and give further credence to arguments for success of the National Ignition Facility (NIF) . . . [I]n order for the National Academy of Sciences to produce an interim report before September 1996, a contract with the NRC must be in place by February 1996."
- Information obtained during the discovery phase of NRDC, et al. v. Peña, et al., shows that while the underlying contractual charge to the committee remained unchanged -- "determine the technological readiness of the NIF project to proceed with construction [and] the adequacy...of confidence of achieving ignition" -- the public description of this charge -- the so-called "Terms of Reference" under DOE's first "Task Assignment" to the Committee -- was altered at the last moment at the behest of Academy officials, with the effect of papering over the otherwise direct link between DOE's request for an "interim report" and its planned go-ahead for NIF physical construction.
- The revised "Terms of Reference" dropped any reference to the impending decision to begin physical construction of NIF, and the requested assessment of the adequacy of NIF project's confidence in achieving fusion ignition suddenly became "make recommendations to facilitate the scientific goal, which is ignition."
- A logical inference from the evidence presented in this report is that the Academy staff belatedly sought to conceal -- or at least blur -- the review's linkage to NIF construction, because it attested to the fact that the NRC-ICF Committee had indeed been specifically established by DOE to lend the Academy's prestige to a major program decision.
- Nevertheless, at the Committee's first meeting the DOE Defense Programs Deputy Assistant Secretary for Research and Development, "pointed out that the committee's input, at least in the form of an interim report, will be essential prior to proceeding through Critical Decision 3, approval of physical construction of the NIF." And in its March 1997 Interim Report, the NRC-ICF Committee stated that it was rendering a judgment on whether the NIF project was "technologically and scientifically ready to proceed as planned."
- While all the individual committee members were distinguished scientists and the committee was well suited for technical evaluation -- scientific credentials were never an issue -- the NRC-ICF Committee as a whole was seriously unbalanced with respect to rendering a judgment on whether DOE's ICF program was scientifically and technologically ready to begin construction of NIF at LLNL.
- Five out of the sixteen members were paid consultants to LLNL.
- While serving on the committee, three members were directly involved in (successful) bids for closely related DOE Defense Program computer simulation contracts.
- Overall, 14 out of sixteen members had a personal or institutional connection with the agency whose program was ostensibly undergoing "independent" review
- Eleven out of 16 members (i.e., two-thirds) of the committee had either previously stated positions supporting NIF and/or were consultants or advisers to Livermore Laboratory and even the NIF program itself.
- Taken as a whole, therefore, the NRC-ICF Committee was egregiously unbalanced, that is to say, biased, in its inclusion of individuals with serious conflicts of interest, and in its lopsided distribution of scientific and technical viewpoints, professional associations, and institutional affiliations.
- In light of the evidence of such palpable bias, and the expressions of outside concern which it aroused, the stonewalling response from the Academy was instructive, and provides a good indicator of the standards likely to be applied to NRC federal advisory committees in the future if the Academy succeeds in its current drive on Capitol Hill to remove itself from the purview of FACA.
- In a January 22, 1997, letter to NRDC, Dr. Bruce Alberts responded to the bias and conflict concerns as follows:
"After careful review, I can only respond by reiterating what my colleagues here at the NRC have discussed with you before -- that the NRC has carefully chosen this committee of highly-qualified experts, that the NRC believes the committee is appropriately balanced and free of conflict of interest for the charge addressed to the NRC, and that the committee's draft report will be rigorously reviewed by experts outside the committee and revised, if necessary . . .
"It is true that half of the committee members have served on previous bodies reviewing the NIF, ICF, or the DOE laboratories....Such service, in fact, gives these members both a broader and more in-depth knowledge of the scientific and technical issues in the programs which are being reviewed. Concerning the overall balance of the committee, fully one-half have no such previous experience with the NIF or ICF program."
- This response indicates a virtual breakdown in the Academy's controls for recognizing obvious individual conflicts of interest and palpable bias in the composition of its review committees. This report reviews the backgrounds of each of the committee members individually. The available data indicate that, contrary to Dr. Alberts claim, 12 of 16 members (75%) had "served on previous bodies reviewing the NIF, ICF, or the DOE laboratories," and 13 members (80%) of the committee had "previous experience with the NIF or the ICF program."
- In violation of FACA, there were never any public notices of meetings of the NRC-ICF Committee.
- The committee operated under the ground rule that the chair retained the right to declare a closed session at any time at his sole discretion. A closed session of an NRC committee means attendance by the committee and NRC staff only -- supposedly to protect draft recommendations until completion of the Academy review process and to ensure that sponsors of studies cannot use their funding leverage to pressure members to make changes in draft reports. Chairman Koonin chose to undermine these objectives by inviting DOE officials to a closed meeting of the NRC-ICF Committee, in which, according to court papers, DOE "received verbal indications that the committee's analysis found no technical reason to delay NIF." While the stacked nature of the committee meant that this conclusion was never in doubt, Chairman Koonin's actions reveal that the Academy's nominally "rigorous" internal and external review process can also be merely pro forma, whenever the needs of the situation dictate.
- Despite being a scientist and having received an invitation to make a presentation to the committee on technical issues, one of us (Cochran) was initially denied access by the NIF Committee staff to written testimony and viewgraph materials of previous presenters. Only after Cochran appealed directly to the Executive Officer of the NRC was he given limited access to these materials -- less than 24 hours before he met with the committee. Our other co-plaintiffs in the case encountered even greater difficulties in dealing with the Committee.
In summary, several committee members had direct financial conflicts of interest, in direct violation the Academy's own conflict of interest rules. The Academy, the Committee, and the Department of Energy refused to correct these problems when they were brought to their attention. As a consequence the NRC biased the scientific and technical review of a major public policy issue. The Academy staff and the NRC-ICF Committee acted to prevent interested members of the public from attending unclassified meetings and making presentations. For a short period the Academy's staff acted to prevent interested scientists and a Federal official at the Office of Management and Budget from obtaining unclassified minutes of a committee meeting. The Academy staff repeatedly refused to make available unclassified documents -- those that were distributed to the committee -- to an interested scientist who was not on the committee.
In sum, the Academy violated FACA, the Academy's own rules, minimal standards of conduct related to the provision of scientific data to inquiring scientists, and minimal standards of decency toward the public while taking public moneys to address a public policy issue. The Academy has demonstrated that it is incapable of enforcing even its own weak rules.
The nation deserved an independent, unbiased review of the scientific and technological readiness of NIF prior to spending up to $3.5 billion on the project. The nation did not obtain such a review from the NRC-ICF Committee.
As a consequence of Animal Legal Defense Fund v. Shalala the Academy must now comply with FACA. As a consequence of NRDC, et al. v. Peña, et al., while the Court permitted the Academy to publish the first and only report of the NRC-ICF Committee, DOE cannot utilize it or any other product of the NRC-ICF Committee; and the NRC-ICF Committee, at least as presently constituted, has been abolished.
Given that the Supreme Court has let stand ALDF v. Shalala, the Academy is now turning to the Congress for a total exemption from the requirements of FACA. A better solution, at least in terms of the public's interest, would be insure that all Federally funded committees of the Academy comply with FACA's "openness" provisions, and with the FACA requirement that advisory committees be "fairly balanced in terms of points of view," but give the Academy, rather than funding agencies, responsibility for insuring compliance with these provisions, while also continuing to ensure that the Academy's FACA compliance is subject to judicial review.
1. Letter from NRC Chairman Bruce Alberts to Thomas B. Cochran, Director, Nuclear Program, NRDC, January 22, 1997, p. 1.
2. This estimate includes $1.7 billion in construction and LLNL program related costs and $1.8 billion in operating funds over 15 years.
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