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        Myron M. Cherry, Chicago, Ill., Thomas C. Mullaney, Jr., Providence, R.I., for plaintiffs.

        Lincoln C. Almond, U.S. Atty., R.I., Everett C. Sammartino, Asst. U.S. Atty., R.I., Providence, R.I., for defendants.

        OPINION

        PETTINE, Chief Judge.

        Plaintiffs bring this action against the United States, the General Services Administration ('GSA'), and Arthur F. Sampson, the Administrator of GSA (sometimes hereinafter collectively referred to as 'GSA'), for declaratory and injunctive relief. Plaintiffs contend that GSA, as the federal agency empowered to dispose of 'surplus' government property, proposes to dispose of a parcel of land located in Charlestown, Rhode Island and now owned by the Department of the Navy as the Charlestown Naval Auxiliary Landing Field ('NALF'), in violation of the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq. ('NEPA'), and the Federal Property and Administrative

Services Act of 1949, 40 U.S.C. § 471 et seq. ('FPAS'), as amended, as well as regulations promulgated under both acts.

        PROCEEDINGS IN DISTRICT COURT

        On December 4, 1974, plaintiffs filed their verified complaint, a lengthy document which, if read broadly, accused GSA of conspiring with the Narragansett Electric Company ('Narragansett') and its parent, the New England Power Company, to circumvent the mandates of FPAS and NEPA in the disposal of the NALF. Plaintiffs' motion for a temporary restraining order was heard in open court on December 4, at which time the Court entered an order halting the disposal to Narragansett. With the parties' consent, the matter was set down for a consolidated hearing on the merits on December 11, 1974. Although invited to do so, Narragansett did not seek to intervene.

        Plaintiffs' case at the December 11 trial consisted of three witnesses, two of these being named plaintiffs whose testimony was offered primarily to establish standing, and ninety-seven documents, the vast majority of which were obtained from the files of GSA itself pursuant to a request made by plaintiff Claudine Schneider under the Freedom of Information Act, 5 U.S.C. § 551 et seq., prior to the filing of this action. Aside from exhibits 1-3, which are copies of this Court's orders, the remainder of plaintiffs' exhibits are documents which had been produced by the defendants prior to trial.

        After their motion for a directed verdict was denied, the defendants declined to offer any evidence, documentary or oral, at trial. They did file the affidavit of Robert R. Rice, an assistant general counsel of GSA, dated December 23, 1974, along with their first post-trial memorandum. See note 22 infra.

        FINDINGS OF FACT

        On November 9, 1973, the Department of the Navy informed GSA that 2,595.1 acres of land denominated the 'U.S. Naval Air Station, Quonset Point, Rhode Island,' were 'excess' to the Navy's needs and thereby available to other federal agencies (Exh. 4). See 40 U.S.C. § 472(e). The property was screened by federal agencies in November, 1973, but no federal interest was indicated at that time (Exh. 15). The NALF was included in this acreage, although not specifically mentioned and geographically separated

from Quonset Point. This lack of specificity resulted in the failure of one federal agency to express its interest in acquiring a portion of the NALF during the federal agency screening period and before it was declared 'surplus,' and thereby made available to nonfederal agencies, on May 1, 1974. See 40 U.S.C. § 472(g).

On May 1, 1974, GSA issued a notice that the NALF had been determined 'surplus' and available for disposal under provisions of the FPAS (Exh. 5). Nonfederal public agencies interested in acquiring the property were directed to file a notice of intent by May 10, 1974. Various federal agencies were advised in advance (Exh. 18

20) that the 'Notice of Surplus Determination' was being sent to the State of Rhode Island (Exh. 21, 23), the Town of Charlestown (Exh. 22, 25), and others upon request (Exh. 32, 93). Prior to that time, GSA had already received expressions of concern as to the ultimate disposition of the property from Ecology Action for Rhode Island (Exh. 6-9, 11), from Concerned Citizens of Rhode Island regarding the possible construction of a nuclear power plant, and an expression of interest in acquiring the property from the Town of Charlestown (Exh. 15, 26). Additionally, the State of Rhode Island had requested that the Navy issue a license to erect a meteorological tower on the NALF to gather data to evaluate the feasibility of using the site for an electricity generating plant (Exh. 36).

        As part of its standard disposal procedures, GSA had already requested an appraisal to determine the fair market value of the property. See 40 U.S.C. § 484(e)(3). The appraiser's report was approved on October 8, 1974 and supplemented on October 23. See note 7 supra. On May 1, GSA also sought to determine 'whether or not the subject property has any historical significance' and invited Frederick C. Williamson, Director of the Rhode Island Department of Community Affairs and State Historic Preservation Officer, to make the necessary studies. (Exh. 24). In a responding letter dated May 8, 1974, Mr. Williamson stated that the Rhode Island Historical Preservation Commission was conducting a survey of the NALF under a grant from the New England Power Company and hoped to complete the task by late summer. (Exh. 33A). In a letter to GSA of September 24, 1974, Mr. Williamson reported some of the results of the Commission's surveys and advised:

Details of the discovery and other results of the Commission's survey are contained in a draft report of November, 1974. (Exh. 97).

        After May 1, formal notices of intent to acquire the NALF were received by GSA from a number of public and private entitles. The State advised that it sought the NALF for 'multi-purpose use' (Exh. 28); the Town renewed its earlier requests (Exh. 27, 62); Providence College and the Narragansett Tribe of Indians each indicated their interest in acquiring the land through the Department of Health, Education, and Welfare (Exh. 31, 34, 35, 65, 66); and the Bureau of Sport Fisheries and Wildlife of the Fish and Wildlife Service, Department of the Interior ('FWS'), sought over 300 acres of the NALF to be used as a refuge for migratory waterfowl. See note 6 supra.

        In a letter dated May 6, 1974, the President of Narragansett Electric Company wrote directly to Administrator Sampson to formally request that GSA enter negotiations for the sale of the NALF to Narragansett for construction of a nuclear power plant on the site. Although not a public agency, Narragansett stated its belief that GSA had authority to negotiate a disposal to it under the FPAS, 40 U.S.C. § 484(e)(3)(G), based upon two unusual circumstances: first, the NALF was 'uniquely suited to nuclear power plant use'; and second, the 'Arab oil embargo' and resulting intensification of the 'energy crisis' had hit New England particularly hard and caused then President Nixon to issue a directive on April 19, 1974, that federal surplus property should be made available, whenever practicable, for energy facilities. (Exh. 86).

        As the May 6 letter indicated, Narragansett's interest in the NALF was the result of nearly a year's investigation. See note 10 supra. By May 8, its parent, the New England Power Company, had already funded a study to determine the historical and archaeological significance of the area and the potential environmental impact of a nuclear power plant on the region. (Exh. 33A). Even before Narragansett formally expressed interest in the NALF, the State of Rhode Island's request for a license to erect a meteorological tower as noted above was made on Narragansett's behalf. (Exh. 38, 70). The license was issued by the Navy on May 23 with GSA concurrence. (Exh. 38-39).

        From the moment Narragansett made its request on May 6, the proposed negotiated sale received top priority in GSA's Washington Office of Real Property. A memorandum of May 8 indicates that Walter Moreland, Assistant Commissioner of the Office of Real Property, and Minton Holland, GSA's general counsel, had already reviewed Narragansett's letter and concluded that direct negotiations could be undertaken. (Exh. 87). Although purporting to consider all interests equally, preferred parties were quickly sorted out, and GSA's energies were devoted to bring them to an agreement. These parties were the State, the Town, and Narragansett, the State and Town being willing to defer their respective interests in acquiring the NALF only if Narragansett could acquire the same to construct a nuclear power plant. According to a GSA 'Fact Sheet' prepared August 5, 1974 (Exh. 70), Assistant Commissioner Moreland and a Mr. Berky met with representatives of Narragansett on May 7 to discuss sale of the NALF for a nuclear power plant. The license for the meteorological tower was approved and executed by May 23. (Exh. 39, 70). The report also makes clear that by the beginning of July GSA had determined in principle the ultimate disposition of the NALF:

Statements contained in last paragraph of the August 5 'Fact Sheet' prove very damaging to the defendants when the entire record is reviewed. This report concludes that, as of August 5:

From the time of the Fish and Wildlife Service's request for approximately one half of the NALF on May 23 (see note 6, supra) until August 5, the record is completely devoid of any activity by GSA beyond a mere acknowledgement that FWS was interested in the property. Despite the above-quoted language, GSA continued to reassure interested members of the public and Congress that the FWS interest was being seriously considered in late August and September. (Exh. 46, 48, 51-54).

Similarly, no action had been taken with reference to the repression of interest of the Narragansett Indian tribe, nor that of Providence College. Indeed, nowhere in the record does it appear that GSA ever seriously analyzed the feasibility of desirability of any proposal for the NALF other than as a site for a nuclear power plant.

        Furthermore, nowhere in the record does it appear that GSA ever seriously analyzed the feasibility or desirability of Narragansett's proposal to use the NALF to construct a nuclear power plant. The record instead reveals that GSA relied solely upon information supplied by Narragansett. As early as May 8, an intra-agency memorandum advised that:

Such a statement was submitted to Assistant Commission Moreland by Narragansett in August. (Exh. 84, 85). GSA does not appear to have made any effort to check the accuracy or strength of Narragansett's arguments. Nonetheless, these same arguments formed the basic justifications for the proposed negotiated sale in GSA's 'Explanatory Statement' to Congress required by the FPAS, 40 U.S.C. § 484(e)(6). (Exh. 81, 84-86).

        As far as the Town and State were concerned, GSA's only interest was in getting them to decide, between themselves, which one would receive the portion (50-55 acres) of the NALF that Narragansett would not require to construct a nuclear power plant and, in the event a nuclear power plant proved unfeasible, which one would be designated to acquire the NALF instead of Narragansett. It mattered not to GSA which interest prevailed, only that an accord be reached. (Exh. 70, 88, 91, 92). GSA made no effort to evaluate the merits of the State's as against the Town's proposed use of the land. At one point in August, GSA even delegated the task of bringing the State and Town to an accord to Narragansett. (Exch. 88).

        By the end of August, virtually all plans for the disposition to Narragansett had been worked out in rough. A draft sales agreement had been prepared by GSA's legal staff. (Exh. 91, 92). At a meeting with representatives of the Federal Energy Administration ('FEW'), the Fish and Wildlife Service ('FWS'), and the Atomic Energy Commission ('AEC'), on August 22, GSA informed FWS that its request would be denied in preference to Narragansett, although some accommodation might later be arranged. FWS's concern about the power plant's effect on ecology was met with the response that it would be able to comment on the issue when a draft environmental impact statement ('DEIS') was prepared pursuant to NEPA. As to NEPA, the AEC representative advised that GSA should report a 'negative EIS', that is, that GSA's disposal action to Narragansett did not constitute 'a major federal action significantly affecting the quality of the human environment' within the meaning of § 102(2)(C) of the Act, 42 U.S.C. § 4332(2)(C), presumably because it was a conditional sale, and that prior to any sale the AEC would ultimately

be required to prepare a full environmental impact statement ('EIS') in connection with Narragansett's application for authorization to construct the power plant. (See Exh. 79). The projected date for such an application was listed as 'June' (of necessity, of the year 1975 or thereafter), and the date for the first DEIS was projected for the following August or September. (Exh. 88).

        Thus, by the end of August, all that remained was to iron out final details and terms of the sale and to await resolution of the State-Town conflict. (Exh. 73). An end-of-October completion date was set and kept. (Exh. 73a, 74). During October, GSA prepared final statements and authorizations in order to comply with NEPA and FPAS. As to NEPA, a two-page document, prepared by the Boston office of GSA and submitted to GSA-Washington on October 17 (Exh. 79), formed the basis for GSA's formal declaration of October 30 that the proposed disposal to Narragansett did not require the preparation of an EIS. (Exh. 83). This document, entitled 'Determination Under PMD 1095.1A,' described the NALF property and environs, the proposed disposal to Narragansett, and the conclusion that no EIS was necessary. This conclusion was based in part on the statement that:

        The document also contains the following statement:

This last statement is particularly disturbing in view of the fact that the Regional Office had been advised by Mr. Williamson's letter of September 24, 1974, that at least one major archaeological site had already been identified at the NALF. GSA does not appear to have questioned the accuracy of that earlier report, and indeed had originally requested it. See also note 8 supra. The document similarly omitted any reference to the FWS request for the NALF or the reasons therefor. See note 6 supra.

        As to the FPAS, formal authorization to negotiate a sale to Narragansett and the Town of Charlestown was given by Assistant Commissioner Moreland on October 23. (Exh. 80). The following day, the Regional Office forwarded to GSA-Washington the 'Explanatory Statement' to be submitted to the Congressional subcommittees. (Exh. 81). 40 U.S.C. § 484(e)(6). Narragansett's formal offer to purchase the NALF and an earnest money deposit were received by GSA on October 30 (Exh. 76, 78), and notice of the proposed sale and the 'Explanatory Statement' were sent to Congress. (Exh. 82). Like the earlier document prepared to comply with

NEPA (Exh. 79, 83), the 'Explanatory Statement' failed to indicate that agencies other than the State and Town, most notably the FWS, had expressed an interest in acquiring the NALF and had not agreed to yield to Narragansett's interest. By letter of November 21, 1974, the House of Representatives Subcommittee on Government Activities, through its chairman, Representative Jack Brooks, formally stated its opposition to the proposed sale. (Exh. 98). On December 4, plaintiffs instituted this action.

        CONCLUSIONS OF LAW

        Standing and Jurisdiction

        In essence, plaintiffs challenge two final actions of GSA: one, under NEPA, its report of a 'negative EIS' and, two, under FPAS, its decision to dispose of the NALF by negotiated sale to Narragansett Electric Company. At the hearing on the merits held in this matter on December 11, 1974, this Court ruled that plaintiffs had standing to sue under NEPA, but reserved decision as to their standing under FPAS.

        NEPA

         As to plaintiffs' standing under NEPA, the Court found that the individual plaintiffs, as owners of land near and/or abutting the NALF and recreational users of the pond and proximate environs of the NALF, have direct economic and aesthetic interests which will be substantially injured if the NALF is disposed in a manner which adversely affects the environment. Plaintiffs further claim that the proposed disposal will threaten the unique ecological and historical nature of the area. Plaintiff Glenn testified that the feasibility testing commenced by Narragansett prior to the issuance of the restraining order had already impaired the environment by upsetting the quiet, rural nature of the area.

        Each of the named plaintiffs is also a member of plaintiff RICE. In addition, plaintiff Schneider testified that other individual members of RICE are similarly circumstanced and that among RICE's organizational purposes are the promotion of discussion to achieve rational energy, environmental and land use policies, and the protection of the rights and interests of its members. As a result, the Court concluded that RICE was properly before the Court in its representative capacity. Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963).

        Certainly plaintiffs have alleged such specific 'injury in fact' as to distinguish this case from Sierra Club v. Morton, supra. Indeed, they have also demonstrated, by their geographical proximity to the NALF, at least as direct a stake in the controversy as plaintiffs in United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973), wherein the Supreme Court held sufficient plaintiffs' claim of direct injury to 'their use of the natural resources of the Washington Metropolitan Area' by the allowance of a rate hike to affect virtually all of the nation's railroads. Id. at 687, 93 S.Ct. at 2416. This Court concludes that plaintiffs' economic and aesthetic interests in the NALF environs have been injured by the feasibility testing and are threatened by the resumption of such testing as well as the eventual construction of a nuclear power plant. There can be no question that the environmental interests which plaintiffs seek to protect are 'within the (zone of) interests to be protected' by NEPA. SCRAP, supra at 686 n. 13, 93 S.Ct. at 2415.

        The Court's jurisdiction to review the alleged NEPA violation has not been questioned and is premised on 28 U.S.C. § 1331(a) and 5 U.S.C. § 701 et seq. Silva v. Lynn, 482 F.2d 1282, 1283 (1st Cir. 1973); Save Our Sound Fisheries Association v. Callaway, 387 F.Supp. 292, 297-298 (D.R.I.1974) and cases cited therein.

         We must turn now to the question of plaintiffs' standing to challenge defendants' actions as violative of FPAS. In essence, plaintiffs contend that the FPAS required GSA to dispose of the NALF pursuant to inflexible priorities which gave a preferred, if not absolute, right to the FWS to acquire the property, and further established a preference for conveyance to public agencies over private, and by competitive bidding over negotiated sale. If plaintiffs' contentions are correct, it is obvious that GSA ignored all of these requirements. It is equally obvious, however, that none of these unsuccessful bidders is before the Court. Unlike the unsuccessful bidder, who seeks to improve his position to acquire property by challenging government disposal procedures, plaintiffs' injury and challenge are less direct, and result from a fortuitous combination of circumstances. It just happens in this case that the federal agency which seeks to acquire the NALF would use it for the creation of a waterfowl refuge, a use which plaintiffs obviously prefer over a nuclear power plant. In another case the federal agency might want to construct a post office or a submarine base. These plaintiffs' interest in government compliance with the FPAS is thus tied directly to their view of the desirability of the ultimate user of the property.

        In Data Processing Service v. Camp, supra, and Barlow v. Collins, supra, the Supreme Court established a two-part test to determine a plaintiff's standing to challenge agency action under § 10 of the Administrative Procedure Act, 5 U.S.C. § 702, in the absence of an express grant of standing by Congress. First, the challenged action must be shown to have caused the plaintiff 'injury in fact,' and second, the alleged injury must be shown to have been to an interest which 'is arguably within the zone of interests to be protected or regulated by the stature or constitutional guarantee in question.' Data Processing, supra at 153, 90 S.Ct. at 830. See United States v. SCRAP, supra, at 686, 93 S.Ct. 2405.

        The defendants argue that no one outside of the federal government meets the second part of this test because the FPAS, like other statutes regulating the manner in which the federal government makes contracts to acquire or dispose of property and equipment, was 'enacted solely for the benefit of the Government and confer(s) no enforceable rights upon persons dealing with it.' George Epcar Company v. United States, 377 F.2d 225, 227 (10th Cir. 1967). Cf. Merriam v. Kunzig, 476 F.2d 1233, 1241 (3d Cir. 1973), cert. denied sub nom. Gateway Center Corp. v. Merriam, 414 U.S. 911, 94 S.Ct. 233, 38 L.Ed.2d 149. This argument has been rejected in recent decisions of the Circuit Courts of Appeals for the District of Columbia and Third Circuit, and the Court of Claims, these courts concluding that an unsuccessful bidder is within the zone of interests to be protected by applicable government procurement and disposal statutes. See, e.g., Merriam v. Kunzig, supra; Ballerina Pen Co. v. Kunzig, 140 U.S.App.D.C. 98, 433 F.2d 1204 (1970), cert. denied sub. nom. National Industries for Blind v. Ballerina Pen Co., 401 U.S. 950, 91 S.Ct. 1186, 28 L.Ed.2d 234; Keco Industries, Inc. v. United States, 428 F.2d 1233, 192 Ct.Cl. 773 (1970) ;

        However, plaintiffs' position herein is not like that of a disappointed bidder, who, invited to do business with the government, has acted in reliance upon government adherence to statutory and regulatory mandates. See Merriam v. Kunzig, supra at 1242 and n. 7; Keco Industries v. United States, supra at 1237. Plainly, plaintiffs could not have been bound by the terms of FPAS, nor were they intended to benefit from it in any way distinguishable from the generalized benefit to the nation's citizenry which is to be expected from efficient utilization of government resources. 40 U.S.C § 471. See United States v. Richardson, 418 U.S. 166, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974); Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974). Plaintiffs' status as owners of adjacent land does not alter this conclusion: it would be odd indeed for a court to hold that abutters of federal property may police disposal of that land even though they previously had no right, other than in nuisance or trespass, to challenge how the government made use of it. Finally, protection of plaintiffs' interest in ensuring efficient use of government resources appears to have been delegated to the congressional 'watchdog' committees established by the FPAS to oversee disposal actions by negotiated sale such as this one. See 40 U.S.C.§ 484(e) (6). To the extent that this observation relates to the question of plaintiffs' standing, see Saferstein, Nonreviewability: A Functional Analysis of 'Committed to Agency Discretion,' 82 Harv.L.Rev. 367, 371 (1968), but see Barlow v. Collins, supra at 169 n. 2, 90 S.Ct. 832 (Brennan, J. concurring in result and dissenting in Barlow and Data Processing v. Camp, supra); Hahn v. Gottlieb, 430 F.2d 1243, 1249 (1st Cir. 1970), it reinforces my conclusion that plaintiffs have failed to show that the injury suffered by them was to an interest which 'is arguably within the zone of interests to be protected or regulated by the statute . . . in question.' Data Processing, supra at 153, 90 S.Ct. at 830.

        Violation of NEPA

        We now turn to plaintiffs' claim that defendants have not complied with the mandates of NEPA. Our inquiry has been substantially narrowed by the defendants' concession that a final decision to convey the NALF to Narragansett to erect a nuclear power station is a 'major federal action significantly affecting the quality of the human environment' within the meaning of § 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C), which requires the preparation of an EIS. The only issue before the Court concerns the timing of the impact statement. In Scientists' Institute for Public Information, Inc. v. Atomic Energy Commission, 156 U.S.App.D.C. 395, 481 F.2d 1079 (1973), cited by both plaintiffs and defendants, the D.C. Circuit, per Judge Wright, addressed the question of the proper timing for an EIS to assess the environmental balance sheet of an AEC research program to develop the technology necessary to create operational 'fast breeder nuclear reactors.'

        'In our view, the timing question can best be answered by reference to the underlying policies of NEPA in favor of meaningful, timely information on the effects of agency action. In the early stages of research, when little is known about the technology and when future application of the technology is both doubtful and remote, it may well be impossible to draft a meaningful impact statement. Predictions as to the possible effects of application of the technology would tend toward uninformative generalities, arrived at by guesswork rather than analysis. NEPA requires predictions, but not prophecy, and impact statements ought not to be modeled upon the works of Jules Verne or H. G. Wells. At the other end of the spectrum, by the time commercial feasibility of the technology is conclusively demonstrated, and the effects of application of the technology certain, the purposes of NEPA will already have been thwarted. Substantial investments will have been made in development of the technology and options will have been precluded without consideration of environmental factors. Any statement prepared at such a late date will no doubt be thorough, detailed and accurate, but it will be of little help in ensuring that decisions reflect environmental concerns. Thus we are pulled in two directions. Statements must be written late enough in the development process to contain meaningful information, but they must be written early enough so that whatever information is contained can practically serve as an input into the decision making process.' Id. at 1093-1094 (emphasis added) (footnotes omitted).

        The court in Scientists' Institute concluded that an agency decision that the time is not yet ripe for the preparation of an EIS should be reviewed under a "rational basis' test, under which the court will reverse the agency's decision if it has no warrant in the record (before the district court) and no reasonable basis in law' as set forth in NLRB v. Hearst Publications, Inc., 322 U.S. 111, 131, 64 S.Ct. 851, 88 L.Ed. 1170 (1944). Scientists' Institute, supra at 1095 n. 68.

         Upon a review of the policies underlying NEPA, decisional law, and the facts of this case, this Court likewise

concludes that an agency decision to defer filing of an EIS is reviewable, and that the proper standard of review is the 'rational basis' test enunciated in Scientists' Institute, supra.

        One of the two major purposes of NEPA, and embodied in the requirement that an impact statement be prepared in conformance with § 102(2)(C), 42 U.S.C. § 4332(2) (C), is to ensure that environmental concerns be made a meaningful part of the agency decision making process, by requiring that the agency engage in a systematic and scientific analysis of the environmental pros and cons of a proposal before committing the government to it. It has frequently been recognized, in numerous judicial opinions, in the statements and guidelines of the Council on Environmental Quality ('CEQ'), established by NEPA to oversee its implementation, and is implicit in the Act itself, see, e.g., 42 U.S.C. § 4332(2)(C)(v), that this purpose can be completely thwarted by the belated preparation and filing of an EIS. The decision to delay the preparation of an EIS until the final stages of a project, after all major decisions have been made, carries in it the danger that the statement's findings will have little or no input into the decision making process, thereby rendering the decision to defer preparation of the EIS into the functional equivalent of a decision not to file one at all. Indeed, in the case at bar GSA did file a negative declaration in conjunction with its report to Congress. And, if defendants' position prevails, it can be anticipated that no EIS

will be prepared until some time after Narragansett completes its on-site testing and applies for construction permits, a process which may require anywhere from one to seven years to complete.

        Thus we are faced, in a very real as well as a technical sense, with a decision not to file an EIS. The fact that an EIS will be filed 'eventually' cannot be held to preclude judicial review, lest the important purposes of NEPA be entirely frustrated. And since this decision is so closely akin to a decision not to file an EIS at all, the Court is persuaded that no lesser a standard of review should be employed than that applicable to a 'negative EIS declaration.' Although a few of the courts first considering the proper scope of review of a negative declaration adopted the 'arbitrary or capricious' standard of Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), a growing number of courts have expressly rejected that standard and have applied either the test of 'reasonableness' enunciated in Scientists' Institute v. AEC, supra, or its rough equivalent. To the extent that the two standards result in a different scope of review, the

Court is persuaded that only the more searching review required under the 'rational basis' test is consonant with the mandatory language of NEPA and the high standards that it sets. See Minnesota PIRG v. Butz, supra at 1320-1322; Wyoming Outdoor Coordinating Council v. Butz, 484 F.2d 1244, 1250 (10th Cir. 1973). See also Hanly v. Kleindienst, 471 F.2d 823, 836 (2d Cir. 1972) (Friendly, J., dissenting), cert. denied, 412 U.S. 908, 93 S.Ct. 2290, 36 L.Ed.2d 974. Cf. Silva v. Lynn, supra at 1285.

         As noted above, one of the crucial goals of NEPA was to restructure agency decision making. If the instant case is any indication, the 'action forcing' provisions of NEPA, see Calvert Cliffs' Coordinating Committee v. United States Atomic Energy Commission, 146 U.S.App.D.C. 33, 449 F.2d 1109, 1113 and n. 7 (1971), have not resulted in the agency self-policing contemplated. NEPA's reach is not limited to 'major federal actions' within the meaning of § 102(2) (C), 42 U.S.C. § 4332(2)(C); only the requirement to prepare an EIS is. And yet this record amply demonstrates an utter disregard of environmental concerns by GSA despite its knowledge that the prospect of a nuclear power plant was unquestionably of environmental significance and wholly apart from the equally significant fact that a number of radically different uses for the NALF had been proposed by serious contenders for the property. Certainly these factors would suggest even to the most unwary that the environmental issues which would need to be considered would be far too complex to be handled in a cursory fashion. Even if the time was not ripe for preparation of an EIS at the end of May, 1974, NEPA nonetheless mandated that these environmental issues be examined, albeit in a less scientific fashion than that required to prepare an EIS.

        Yet the record speaks to the contrary. When environmental issues were raised, it was done by members of the public or the FWS. The concerns that were voiced were either ignored by GSA or deferred. From the moment Narragansett submitted its request, all GSA energy was concentrated on reaching an accord between GSA, Narragansett, the State, and the Town, that a nuclear power plant, if feasible, be built. The justification for this, as appears in the record and argued to the Court, was the sense of urgency produced by the nation's 'energy crisis,' coupled with the 'unique suitability' of the NALF as a nuclear power plant site.

         I take judicial notice of the 'energy crisis,' which was heightened by the 'Arab oil embargo' in the winter of 1973. However, the spectre of the 'energy crisis' cannot be raised to excuse full compliance with NEPA as was recognized

in Calvert Cliffs' v. AEC, supra at 1119-1122, and in Natural Resources Defense Council, Inc. v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827, 834-835 (1972). Cf. Scientists' Institute v. AEC, supra. As the court noted in Calvert Cliffs' v. AEC, supra at 1122:

GSA cannot cloak its actions from review by raising the mantle of the 'energy crisis.' On balance, I must also take notice of the fact that about as many 'solutions' to the 'energy crisis' have been proffered as there are proponents for them.

        The sense of urgency which GSA derived from the fact of the 'crisis' serves only to amplify the need for rigorous enforcement of NEPA. Rather than explore the merits of constructing a power plant on the NALF site as a partial 'solution' to the problem, GSA appears to have acted on the belief that any addition to the domestic production of electrical power would be beneficial, no matter what the costs. Rather than examine the asserted suitability of the NALF as a power plant site, GSA relied on, without question, and adopted as its own findings points raised not by a neutral consultant, but by the very party seeking to convince GSA of the primacy of its position.

         It is obvious that compliance with NEPA, and in particular the requirements for an EIS, will slow down the decision making process. It is equally obvious that the prospect of lengthier deliberations is an integral part of NEPA's mandate that agency decision making processes be altered so that environmental concerns can be identified and fully explored at the earliest stages of project planning. See Calvert Cliffs' v. AEC, supra at 1128. A well-intentioned, but misplaced, sense of urgency can lead an agency, at the least, to make an irretrievable commitment of time and resources, if not also to commit itself to a project which later proves to be environmentally harmful.

         In the case at bar, GSA argues that it is too soon to file an EIS, and that the preparation of an EIS by GSA in which all competing uses will be considered should be deferred to coincide with the preparation of an EIS by the AEC in conjunction with Narragansett's construction and licensing applications. Only at that time, GSA argues, will sufficient data have been obtained to determine if a nuclear plant is 'technically and environmentally feasible.' Defendants' Post-Trial Memorandum at 19-20.

        This argument proves too much. It aligns GSA's responsibilities with those of the AEC and presupposes the desirability of selling the land to Narragansett. The two inquiries are severable. The AEC responsibility would exist irrespective of the fact that the proposed site is owned by the government. See 42 U.S.C. § 2232. Cf. Gage v. United States Atomic Energy Commission, 156 U.S.App.D.C. 231, 479 F.2d 1214 (1973).

As GSA now acknowledges, the AEC focus is strictly limited to the pros and cons of erecting a nuclear power plant; it does not consider that question in relation to any other possible use of the property. (Affidavit of Robert Rice). Thus, the fact that another EIS may have to be prepared does not relieve GSA of its duties under NEPA; it simply reminds us that the merits and demerits of a nuclear power plant may be the subject of further review by the AEC. If this factor has any bearing on the proper timing for GSA's EIS, it argues towards an earlier assessment by GSA of the competing interests than at the time of the licensing applications, since GSA could prepare its EIS on the assumption that the erection of a nuclear plant on the NALF is scientifically feasible and be comforted by the knowledge that such an assumption would be the subject of thorough AEC review on the basis of extensive scientific testing in the event of an initial decision to sell to Narragansett.

         Thus, in determining whether the proper time for the preparation of an EIS by GSA has arrived, this Court must focus on GSA's ability at the present time to make the environmental forecasts specified in subsections (i) through (v) of § 102(2)(C), 42 U.S.C. § 4332. As Judge Wright recognized in Scientists' Institute v. AEC, supra at 1094, this inquiry requires a balancing process to reconcile the conflict between the need to rely on accurate information and the need to obtain an environmental analysis early enough to be made a part of the decision making process.

         GSA's sole argument that the time for an EIS is not yet ripe is that Narragansett needs to conduct further tests before it can be determined whether the NALF is a suitable site for a nuclear power plant. GSA gives no indication of what steps GSA plans to take in this interim period. The argument overlooks the fact that enough is already known about the NALF to convince first Narragansett and then GSA of its 'unique suitability' as such a site. The record demonstrates that enough is known about the operation of nuclear power plants in general and the physical characteristics of the NALF in particular to have made it possible for Narragansett to specify that it would require all but 50-55 acres of the property, and to commission an archaeological study of the NALF based on projected dimensions of the power plant. See note 8 supra. The fact that construction of a power plant might prove scientifically impossible, or may eventually entail

structural modifications, does not eradicate GSA's ability today to forecast the environmental impact of the power plant on the basis of project dimensions, asserted suitability, and the knowledge derived from experience with other nuclear power plants and their effects on the environment.

        'Reasonable forecasting and speculation is thus implicit in NEPA, and we must reject any attempt by agencies to shirk their responsibilities under NEPA by labeling any and all discussion of future environmental effects as 'crystal ball inquiry. " Scientists' Institute v. AEC, supra at 1092.

        GSA's ability today to identify alternative uses of the NALF is beyond dispute. In fact, no occurrence between today and the time when GSA proposes to prepare an EIS can be expected to enhance GSA's ability to evaluate the desirability or environmental effects of these competing interests. The conditional sales contract would permit only Narragansett to have access to the property for testing. Even the government would be excluded.

         Lastly, GSA's argument obscures the fact that the decision to reserve the NALF to Narragansett alone for a period of up to seven and one half years in the face of these competing interests itself involves an 'irreversible and irretrievable commitment of resources,' which should be explored before going forward. See 42 U.S.C. § 4332(2)(C)(v). To await the completion of site-testing in one or two or five years only to reject the proposal on the ground that construction of a power station, although scientifically feasible, is a less desirable use of the property obviously represents a waste of time and resources. Cf. Jones v. Lynn, 477 F.2d 885, 890-891 (1st Cir. 1973). It is also a dangerously unrealistic proposition. By that time the agency commitment to the project, proved to be scientifically sound, will have increased. At the same time, the politically embarrassing prospect of acknowledging that the waste of a great deal of time and resources could have been so easily avoided will militate against the agency's ever reaching such a conclusion. Cf. Silva v. Romney, 473 F.2d 287, 291 (1st Cir. 1973).

        Thus, the Court must conclude that there is no rational basis to support GSA's conclusion that it need not prepare and file an EIS prior to executing a conditional sales contract with Narragansett. See Scientists' Institute v. AEC, supra at 1095-1098. The defendants are therefore enjoined 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.

        Attorneys' Fees

         In view of the valuable public service performed by plaintiffs and their counsel in commencing and ably prosecuting this action to compel agency adherence to NEPA, it is with regret that the Court concludes that it is without authority to award plaintiffs the attorneys' fees that they seek. Both the United States Supreme Court's unequivocal decision in Alyeska Pipeline Service Company v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975) and the express prohibition of such an award in 28 U.S.C. § 2412 compel this conclusion. See Alyeska Pipeline v. Wilderness Society, supra at 267 n. 40, 95 S.Ct. 1612, n. 40. See also Committee on Civic Rights of the Friends of the Newburyport Waterfront v. Romney, 518 F.2d 71 (1st Cir. 6/13/75).

        As the Supreme Court noted in Alyeska Pipeline, Congress has in a number of enactments expressly provided for the recovery of attorneys' fees. Id. at 260 n. 33, 95 S.Ct. 1612, n. 33. In the area of environmental legislation in particular, since the passage of NEPA Congress has frequently made provision for attorneys' fees, apparently in recognition of the fact that 'only private citizens can be expected to 'guard the guardians. " La Raza Unida v. Volpe, 57 F.R.D. 94, 101 (N.D.Cal.1972). The case at bar provides but one further testimonial for the need to encourage private

litigants to bring actions to effectuate the strong Congressional policies embodied in NEPA. See, e.g., Sierra Club v. Lynn, 364 F.Supp. 834, 848 (W.D.Tex.1973), modified, 502 F.2d 43 (5th Cir. 1974), cert. denied, 421 U.S. 994, 95 S.Ct. 2001, 44 L.Ed.2d 484 (1975); La Raza Unida v. Volpe, supra at 99.

        It may be that the time has come for Congress to reassess its failure to authorize recovery of attorneys' fees in private actions under NEPA. Obviously, this is a matter which must be left to Congress to determine. See Alyeska Pipeline v. Wilderness Society, supra at 240, 95 S.Ct. 1612. Cf. Katzenbach v. Morgan, 384 U.S. 641, 657, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966).

        Plaintiffs shall enter an order accordingly.

On October 18, 1974, an inter-departmental memorandum sought a reappraisal of the NALF which would 'consider the special-use value of this site on the assumption that the property is immediately available for acquisition and has at this time all approvals needed for the construction of a nuclear electric generating plant.' (Exh. 94). As a result, on October 23, 1974, J. W. Riker Real Estate submitted an additional report taking into account these instructions and a sale price of $6,000.00 per acre. The report concluded that the contemplated sale price of $6,000 per acre represented twice the amount that could be obtained on the open market and the highest price per acre paid to date to acquire a nuclear power plant site in New England. (Exh. 95).

These letters to the public (Exh. 46, 48, 51-54) reveal that GSA similarly employed a highly technical, undisclosed set of definitions in making the statement 'We cannot commence negotiations until the (real estate) appraisal has been approved.' There can be no doubt that meaningful negotiations with Narragansett, the State and Town were commenced as early as July, 1974, when 'it was agreed that while the property was being appraised the lawyers would start drafting a sale agreement obligating the Government to sell the property to the Power Company at a set price, possession to be delayed pending licensing of the nuclear power facility . . .' (Exh. 70, p. 2). On August 15, 1974, Assistant Commissioner Moreland again directed the Boston office to draft a sales contract by Labor Day although aware of the fact that the appraisal had not yet had approved. (Exh. 91). The agreed-upon purchase price of $6,000 per acre was necessarily reached before formal approval to 'negotiate' was given on October 23 by Assistant Commissioner Moreland (Exh. 80), the date the final appraisal of the property was submitted. See note 7 supra.

Additionally, the record reveals defendants' argument to be nothing more than the 'post hoc rationalizations' of counsel and therefore requires close and critical review. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 419, 420, 91 S.Ct. 814, 28 L.Ed.2d 77 (1971). The issue of FWS' untimely application surfaced only in defendants' post-trial brief, whereas the record is replete with assurances to citizens and Congressmen that FWS' request was proper and would be given full consideration. (E.g., Exh. 41, 42, 46-48, 51-54). See note 14 supra. Regional Administrator Gammal's letter of November 12, 1974, which formally rejected the FWS request made absolutely no mention of the tardiness of the request as a basis for rejecting it, but purported to reject

it on the merits. (Exh. 89). At the same time, neither GSA's 'Explanatory Statement' to Congress (Exh. 81) nor its determination that no environmental impact statement was required by NEPA (Exh. 79, 83) made any reference whatsoever to the FWS' outstanding request or the reasons for its rejection.

By this discussion I intimate no views as to the proper construction to be given the FPAS and applicable regulations. However, even a cursory review of the record reveals that GSA internally took great liberties with its own publicly stated interpretation of the disposal procedures it must follow. See note 14 supra.

In view of my conclusion that plaintiffs lack standing under FPAS, I do not reach the question of mootness which is implicated by the formal opposition of the House Subcommittee to the proposed sale to Narragansett. (Exh. 98). This issue was not briefed by the parties. However, the proposition arguendo that such opposition effectively blocked the sale as presently contemplated would not dispose of the issues raised under NEPA, discussed infra, as to the separate decision of GSA not to prepare an EIS at this time.

The legislative history and Congressional comment on the purposes for which NEPA was enacted are explored in depth in Calvert Cliffs' v. AEC, supra.

The CEQ Guidelines for the preparation of environmental impact statements direct all agencies to prepare impact statements, where required, 'as early as possible and in all cases prior to agency decision concerning recommendations or favorable reports on proposals.' 40 C.F.R. § 1500.2(a) (July 1, 1974). Furthermore, whether an EIS is required or not,

'initial assessments of the environmental impacts of proposed action should be undertaken concurrently with initial technical and economic studies.' 40 C.F.R. 1500.2(b).

The CEQ Guidelines further counsel:

We think it largely irrelevant which standard of review is verbalized in the context of the instant case. Under Overton Park the court must first delineate the scope of the agency's authority and discretion under the governing statute and then determine 'whether on the facts the (agency's) decision can reasonably be said to be within that range.' 401 U.S. at 416, 91 S.Ct. at 823. Under the rational basis test, the court would have to determine whether the agency's decision had 'reasonable support in relation to the statutory purpose.' See Hardin v. Kentucky Utilities Co., 390 U.S. 1, 9, 88 S.Ct. 651, 19 L.Ed.2d 787 (1968). In the present case, the scope of the AEC's authority and discretion in determining when to draft a NEPA statement for its research and development program is defined specifically be reference to the underlying statutory purpose of timely and meaningful impact statements and, as a result, the two standards of review merge into one.'

Scientists' Institute v. AEC, supra at 1095-1096, n. 68.

In view of the limited scope of discretion, if any, that NEPA affords an agency in implementing its mandate, I must conclude on this record that GSA's actions would not pass even the 'arbitrary or capricious' test of Overton Park v. Volpe, supra. The record is devoid of any agency consideration of the environmental consequences of the competing uses, other than at the August 22 meeting at which FWS comments were 'dismissed with bureaucratic politesse.' (Exh. 88). See Silva v. Lynn, supra at 1287 n. 6. Furthermore, the two-page document (Exh. 79) prepared by GSA in conjunction with its determination that no EIS need be prepared (Exh. 83), is grossly inaccurate in two critical respects: first, it omits any reference to the outstanding FWS request for roughly one half of the NALF to establish a refuge for migratory waterfowl; and second, it categorically states that there is no known historical significance to the property despite Mr. Williamson's report to GSA almost one month before that an important archaeological site had been identified there. (Exh. 99). These two misrepresentations alone mandate the conclusion that the negative determination was made arbitrarily and in total disregard of the administrative record which had been developed.

Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of title 5, United States Code, and shall accompany the proposal through the existing agency review processes.'

It may be argued that an official who pursues a course of action in bad faith is not 'acting in his official capacity' and can therefore be subject to an assessment of attorneys' fees under the long-recognized exception to the so-called 'American rule.' See Alyeska Pipeline, supra at 257, 95 S.Ct. 1612; F.D. Rich Co., Inc. v. Industrial Lumber Co., Inc., 417 U.S. 116, 129, 94 S.Ct. 2157, 40 L.Ed.2d 703 (1974); Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962). To the extent that such an argument is tenable, the Court is nonetheless unable to conclude on the basis of this record that the Administrator of GSA, the only named individual defendant, acted in bad faith in this disposal action. There is much evidence in the record of the Administrator's personal interest in the NALF and an expeditious disposal to Narragansett. (E.g., Exh. 69, 70, 73a, 78). However, there is not sufficient evidence to show that the Administrator personally directed or acquiesced in a course of conduct to evade NEPA requirements. Indeed, it it doubtful that the attempt to make such a showing could be launched without extensive deposition or the presentation of live witnesses, possibly including the Administrator himself. The irony behind this observation lies in the recognition that, in light of the Alyeska Pipeline decision, few 'public interest' litigants will decide to venture the additional expense which would generally be required to make such a showing.