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9 ELR 20685 | Environmental Law Reporter | copyright © 1979 | All rights reserved New England Power Co. v. GouldingNo. 79-1889; No. 79-1953 (D.D.C. August 21, 1979; August 22, 1979)The court denies plaintiffs' motion for a preliminary injunction barring the proposed transfer of the Rhode Island Naval Auxiliary Landing Field from the General Services Administration to several other federal agencies. After preparing an environmental impact statement (EIS) addressing possible alternative uses of the retired facility, defendants determined not to convey all or part of the facility to plaintiffs for use as a nuclear power plant site but to select a plan under which the land would be used jointly as a wildlife refuge, recreational area, and an environmental research station. The court finds that plaintiffs have not made a substantial showing of likelihood of success on the merits of their claims that (1) the EIS devoted inadequate attention to the alternative calling for use of the facility both as a nuclear power plant site and for wildlife and recreational purposes, (2) the transaction violates the Federal Property and Administrative Services Act because of defendants' failure to show adequately that the alternative selected represented the highest and best use of the facility, (3) that defendants' decision was arbitrary and capricious and thus contrary to the requirements of the Administrative Procedure Act, and (4) the determination was tainted by bias on the part of defendant Goulding. In addition, the court finds that the parties are not so situated that the balance of harms and the public interest favor the issuance of preliminary injunctive relief. The motion is therefore denied. The circuit court of appeals denies appellants' motion for a stay of the district court's denial of its motion for a preliminaryinjunction against the proposed conveyance of the Rhode Island Naval Landing Field, ruling that appellants have not demonstrated a substantial case on the merits. Counsel for Plaintiffs Counsel for Defendants Anthony S. Borwick Counsel for Intervenors Town of Charlestown Opinion of Greene, J., United States District Court for the District of Columbia: Upon consideration of plaintiffs' motion for a preliminary injunction, defendants' opposition and plaintiffs' reply thereto, the affidavits, exhibits and administrative record attached thereto, and the oral arguments of counsel at the hearing on this matter, it is by the court this 21st day of August 1979, ORDERED for the reasons set forth that plaintiffs' motion is hereby denied. Plaintiffs, New England Power Company and its subsidiary, the Narragansett Electric Company (hereinafter NEPCO) initiated this action against defendants Paul Goulding, former Acting Administrator of the General Services Administration (hereinafter GSA), Rowland G. Freeman, the present Administrator of GSA, and GSA, to enjoin the transfer of a 604-acre parcel of federal land known as the Charlestown Rhode Island Naval Auxiliary Landing Field (hereinafter NALF). Plaintiffs, [9 ELR 20686] who seek to use 120 acres of the land to construct a nuclear power plant, allege that defendants' decision to transfer the property to the Department of the Interior (hereinafter DOI), the Environmental Protection Agency (hereinafter EPA), and the Town of Charlestown,1 violates the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321, 4331 et seq., the Federal Property and Administrative Services Act (FPAS), 40 U.S.C. § 471 et seq., GSA regulations implementing the FPAS, and the Administrative Procedure Act, 5 U.S.C. § 704 et seq. In addition, plaintiffs allege that defendant Goulding was biased in making his decision to dispose of the property. The court, after careful consideration of the submissions of both sides, the oral arguments of counsel, and the entire record herein, concludes that plaintiffs have failed to meet the standards for issuance of a preliminary injunction as set forth in Virginia Petroleum Jobbers v. FPC, 259 F.2d 921 (D.C. Cir. 1958). NEPCO has not made a substantial showing of likelihood of success on the merits. Plaintiffs attack the adequacy of the final environmental impact statement (hereinafter FEIS) prepared pursuant to NEPA for its failure to analyze a joint use proposal whereby NEPCOand DOI would have shared the property. They state that under NEPA any alternative raised in a timely manner must be considered by the agency and its impacts evaluated. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 [8 ELR 20288] (1978); Concerned About Trident v. Rumsfeld, 555 F.2d 817 [6 ELR 20787] (D.C. Cir. 1977). These cases, however, caution that NEPA does not require an exhaustive and detailed review of the environmental effects of every conceivable alternative put forth by interested parties. Vermont Yankee, supra, at 551. In this case, the FEIS devoted approximately 150 pages to analyzing the environmental effects of plaintiffs' proposed nuclear power plant. Given the thorough consideration that the nuclear power plant proposal received, it is not surprising that a more detailed analysis of the proposed joint use of the property by NEPCO and DOI was not undertaken. Thus, the court concludes that in light of the detailed consideration which plaintiffs' proposal received, and in light of the Supreme Court's admonition that courts are not to substitute their judgment for that of the responsible agency, plaintiffs have not made a substantial showing that the FEIS, part of the record on which Acting Administrator Goulding based his decision, was inadequate. In addition, plaintiffs have not made a substantial showing that they are likely to succeed on the merits of their claims under the FPAS and APA. Plaintiffs complain of Goulding's alleged failure to make specific findings with regard to the highest and best use of the property as required by GSA guidelines. The court concludes, however, that Goulding's decision paper refutes this claim. For the reasons stated therein, he determined that the property was best used primarily as a wildlife refuge and in other ways consistent with this primary use. Similarly, NEPCO's claim under the APA attacking the adequacy of the record before Mr. Goulding is not well founded. The scope of judicial review under the APA is limited to an inquiry as to whether the decision of the Administrator was arbitrary and capricious. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 [1 ELR 20110] (1971); Camp v. Pitts, 411 U.S. 138 (1972). The facts indicate that a lengthy record presenting the view of all interested parties was before the Administrator. Based thereon, he exercised his judgment and discretion. In light of this, the court cannot find that his decision was arbitrary and capricious or failed to conform to law. Lastly, the court finds that plaintiffs' claim of bias is not likely to succeed on the merits. The test for determining whether a decision maker should be disqualified is set forth in Cinderella Career and Finishing Schools, Inc. v. FTC, 425 F.2d 583, 591 (D.C. Cir. 1970) as follows: The test for disqualification [is] . . . whether "a disinterested observer may conclude that [the agency] has in some manner adjudged the facts as well as the law of a particular case in advance of hearing it." [Citations omitted.] This test does not require a decision maker to be subjectively impartial. See Environmental Defense Fund v. Corps of Engineers, 342 F. Supp. 1211 [2 ELR 20353] (E.D. Ark. 1972). There is no reason to believe thatActing Administrator Goulding, who noted voters' anti-nuclear sentiment while campaigning for Senate from Rhode Island three years earlier, was incapable of rendering an impartial decision. Moreover, Mr. Goulding's decision was reviewed and approved by the present GSA Administrator Rowland Freeman as conforming to all applicable laws and regulations. With regard to the balance of equities as to other relevant standards set forth in Virginia Petroleum Jobbers Ass'n, supra, "the harm to the other parties in the proceedings" and the public interest outweigh the injury to plaintiffs if the injunction is not issued. The status of this property has been in limbo for almost six years. A decision as to which entities receive it has been made and should be implemented. The public interest would not be served by prolonging or reinstituting the administrative process. Accordingly, plaintiffs' motion for a preliminary injunction is denied. An appropriate order is entered herewith. Per curiam opinion of Leventhal, Robinson,* and Wald, JJ., United States Court of Appeals for the District of Columbia Circuit: On consideration of appellants' motion for stay, of the response thereto, and it appearing to the court that appellants have not demonstrated a "substantial case of the merits," see Washington Metropolitan Area Transit Commission v. Holiday Tours Inc., et al., 182 U.S. App. D.C. 220, 222, 559 F.2d 841, 843, 844 (1977), it is ORDERED by the court that the aforesaid motion is denied. 1. Pursuant to the court's order of August 17, 1979, the Town of Charlestown was allowed to intervene as a defendant. * Circuit Judge Robinson did not participate in the order. 9 ELR 20685 | Environmental Law Reporter | copyright © 1979 | All rights reserved |