Rhode Island Committee on Energy v. General Services Admin., No. 76-1530

• Decision Date: 16 August 1977
• Docket Number: No. 76-1530
• Citation: 561 F.2d 397
• Parties: , 7 Envtl. L. Rep. 20,629 RHODE ISLAND COMMITTEE ON ENERGY et al., Plaintiffs, Appellants, v. GENERAL SERVICES ADMINISTRATION et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 397

561 F.2d 397

10 ERC 2011, 7 Envtl. L. Rep. 20,629

RHODE ISLAND COMMITTEE ON ENERGY et al., Plaintiffs, Appellants, v. GENERAL SERVICES ADMINISTRATION et al., Defendants, Appellees.

No. 76-1530.

United States Court of Appeals First Circuit.

Argued March 8, 1977.

Decided Aug. 16, 1977.

Myron M. Cherry, Chicago, Ill., with whom Peter A. Flynn, Chicago, Ill., and Thomas C. Mullaney, Jr., Providence, R. I., were on brief, for plaintiffs, appellants.

John J. Zimmerman, Atty., Dept. of Justice, Washington, D. C., with whom Peter R. Taft, Asst. Atty. Gen., Washington, D. C., Lincoln C. Almond, U. S. Atty., Everett C. Sammartino, Asst. U. S. Atty., Providence, R. I., Edmund B. Clark, and Irwin L. Schroeder, Jr., Attys., Dept. of Justice, Washington, D. C., were on brief, for defendants, appellees.

Felice D. Cohen and Richard E. Ayres, Washington, D. C., were on brief for The Fund for Constitutional Government, the Natural Resources Defense Council, Inc., and the Friends of the Earth, amici curiae.

Edward F. Hindle, Matthew F. Medeiros, Edwards & Angell, Providence, R. I., and Beveridge, Fairbanks & Diamond, Washington, D. C., were on brief for New England Power Co. and the Narragansett Elec. Co., amici curiae.

Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

Rhode Island Committee on Energy and individuals residing near the Charlestown Naval Auxiliary Landing Field (NALF) in Rhode Island filed suit in late 1974 to block the impending sale by the General Services Administration (GSA) of the "surplus" Navy site to the Narragansett Electric Company which plans to build a nuclear power plant on the property. They sought a declaration that the sale to the power company would violate the National Environmental Policy Act (NEPA), the Council on Environmental Quality's guidelines and GSA's own guidelines for complying with NEPA. They sought also a declaration that the sale would violate provisions of the Federal Property and Administrative Services Act (FPAS), 40 U.S.C. §§ 471 et seq., inasmuch as GSA had ignored a request by the Department of the Interior that it be permitted to use the NALF site as a wildlife refuge, and did not comply with FPAS public notice and competitive bidding requirements. Plaintiffs further requested,

"a permanent injunction preventing GSA from accepting the bid of Narragansett Electric Co. . . . and restraining the GSA from taking any steps independently or in concert with any other federal agency or Narragansett Electric Co. to implement said proposed sale . . . unless and until there is demonstrated compliance with all applicable provisions of (NEPA) . . . and the (FPAS)."

On July 8, 1975, the district court issued a comprehensive opinion indicating that GSA had been both remiss and extraordinarily cavalier in its handling of the disposal of the property. The court stated that it would enjoin defendants "from taking any further action with regard to the proposed disposal to Narragansett until they have prepared and circulated a draft environmental impact statement and filed a final EIS in accordance with NEPA and applicable regulations." 397 F.Supp. 41, 61-62. However, while willing to afford relief under NEPA, the court thought that plaintiffs' challenge based on GSA's alleged violations of the FPAS was not justiciable. As residents of the area surrounding the Naval facility, plaintiffs would suffer "injury in fact" from its disposal to Narragansett, but their interest in the future ownership and use of the site was held not to be within the "zone of interests" arguably protected by the FPAS. Id. at 53-54, citing Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970).

Plaintiffs did not submit a proposed injunctive order to the court but moved to amend their pleadings. They sought to add the Department of the Interior as an involuntary plaintiff and asked for an injunction requiring GSA to turn over to Interior the portion of the NALF site which Interior had requested to use as a wildlife refuge. Interior resisted joinder on grounds that it preferred to await a final EIS before pressing for conveyance of the site, and, in any event, would assert its claim against GSA through the Attorney General rather than through a lawsuit. The court refused to join Interior. 411 F.Supp. 323, 326-27 (1976). However, it announced that some further exploration of the FPAS claim was in order as "the Court cannot simply order GSA to prepare an EIS without first exploring the possibility that, due to (Interior's) assertedly paramount interest in the NALF, no EIS either as to the entire NALF, or as to any part of it, is required by NEPA." Id. at 327. It therefore posed several questions to counsel. Id. at 328. Counsel were asked, in particular, whether the court could order an EIS where the FPAS might make it mandatory that GSA transfer the site to Interior. A few months later, after submissions from counsel, the court issued a third opinion. ¹ It ruled that as the FPAS vested GSA with some measure of discretion in determining who receives a site, an EIS was an appropriate pre-decision step which was consistent with the FPAS. The court entered a final order which, inter alia, declared that sale of the site to Narragansett without preparation of an EIS constitutes a violation of NEPA. However, it denied a permanent injunction "in view of GSA's clearly expressed intention to prepare an EIS without further delay . . .." The court also dismissed the FPAS elements of the complaint because of plaintiffs' lack of standing, dismissed the complaint as against the United States (leaving GSA and its administrator as parties) and denied plaintiffs' request for attorney's fees.

Plaintiffs appeal from all aspects of the order except the declaration relating to the sale to Narragansett. They also challenge the earlier refusal to join Interior as a party.

We deal first with plaintiffs' right to maintain a claim under the FPAS to the effect that GSA had to offer the land to Interior, a federal agency, in preference to selling to the utility. The Federal Property and Administrative Services Act was enacted in 1949 to establish an "economical and efficient system" for the procurement, utilization and disposal of real and personal property. See 40 U.S.C. § 471. It defines "excess property" as "any property under the control of any Federal agency which is not required for its needs and the discharge of its responsibilities, as determined by the head thereof." Id. § 472(e). "Surplus property" is defined as "any excess property not required for the needs and the discharge of the responsibilities of all Federal agencies, as determined by the Administrator (of GSA)." Id. § 472(g). The Administrator "shall provide for the transfer of excess property among Federal agencies" and he may determine "the extent of reimbursement for such transfers of excess property". Id. § 483(a). And, in § 484 the Act provides that the "Administrator shall have supervision and direction over the disposition of surplus property", and established guidelines for disposal by bid or negotiations.

Appellants argue that the FPAS should be interpreted as requiring the Administrator of GSA, subject to a very limited exercise of discretion, to convey "excess property" to a requesting federal agency. They maintain that Interior's request for the NALF site entitled it to the property and that the district court should have ordered such a conveyance.

We agree with the district court that plaintiffs have no standing to challenge the asserted violation of the FPAS. Even under the liberalized concept of standing to challenge administrative actions developed in Association of Data Processing Service Organizations v. Camp, supra, the plaintiffs have failed to show that their claim falls within the "zone of interests" arguably protected by the FPAS.

The minimum constitutional requirement for standing is that a party bringing suit have suffered or be threatened with suffering "injury in fact." A threshold showing of such injury is necessary to insure compliance with Article III's limitation of jurisdiction to "Cases" and "Controversies." See Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). We agree with the district court that plaintiffs meet this minimum requirement. The establishment of a nuclear power plant near their residences would affect their "(a)esthetic and environmental well-being," a detriment sufficient to constitute "injury in fact." ² Sierra Club v. Morton, 405 U.S. 727, 734, 738, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). It is also clear that the environmental harm feared by plaintiffs will follow directly from GSA's conveyance to Narragansett and that the harm will be alleviated by a conveyance to Interior. Hence the relief sought is sufficiently likely to cure the feared injury to give rise to a justiciable case or controversy. See Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 44-46, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976).

But while the claim presented under the FPAS is thus justiciable in a constitutional sense, we must ask whether Congress has given this plaintiff the right to invoke the judgment of a federal court on the issue of the legality of GSA's conduct under the FPAS. The relevant statute is 5 U.S.C. § 702, which provides:

"A person suffering a legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." (Emphasis supplied.)

This section was said in Association of Data Processing Service Organizations, supra, to confer standing only on parties whose threatened interest "is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." 397 U.S. at 153, 90 S.Ct. at 830. See Sierra Club v. Morton, supra, ...