Kingman Park Civic Assoc. v. Muriel Bowser

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 23, 2015 Decided March 8, 2016

No. 14-7168

KINGMAN PARK CIVIC ASSOCIATION,

APPELLANT

v.

MURIEL BOWSER, IN HER OFFICIAL CAPACITY AS MAYOR OF

THE DISTRICT OF COLUMBIA,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:13-cv-00990)

Frazer Walton Jr. argued the cause and filed the briefs

for appellant.

Jason H. Lederstein, Assistant Attorney General, Office

of the Attorney General for the District of Columbia, argued

the cause for appellee. With him on the brief were Karl A.

Racine, Attorney General, Todd S. Kim, Solicitor General, and

Loren L. AliKhan, Deputy Solicitor General. Richard S. Love,

Assistant Attorney General, entered an appearance.

Before: BROWN and SRINIVASAN, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

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Opinion for the Court filed by Senior Circuit Judge

WILLIAMS.

WILLIAMS, Senior Circuit Judge: Kingman Park Civic

Association exists to protect and enhance Kingman Park and

the surrounding neighborhood in Washington, D.C. It has

successfully applied to the District’s Historic Preservation

Review Board to have the former Spingarn Senior High

School designated a historic landmark. (The school was built

in the mid-20th century for African American students, in one

of the last gasps of de jure school segregation.) Next to

Spingarn is Langston Terrace, a 13-acre public housing

complex built in the 1930s as segregated housing for African

Americans.

Over the last several years the District of Columbia has

started to develop a 2.2-mile streetcar line centered on this

neighborhood. It entails a “Car Barn” on the Spingarn

campus in order to provide for storage and maintenance of the

streetcars, plus space for training. We treat the streetcar

program and the Car Barn collectively as “the Project.”

The Association challenged the Project’s construction in

district court on a variety of grounds. In two Memorandum

Opinions and Orders, the court rejected the claims in a medley

of dismissals for failure to state a claim and summary

judgment, both of which we review de novo. Kingman Park

Civic Association v. Gray, 27 F. Supp. 3d 142 (D.D.C. 2014)

(“Kingman Park I”); Kingman Park Civic Association v.

Gray, 27 F. Supp. 3d 171 (D.D.C. 2014) (“Kingman Park II”).

Three main challenges arise out of those rulings: (1) that

the District’s legislation (the “Wire Acts”) authorizing

construction of the overhead wires to supply the streetcars

with power violated an 1888 federal statute; (2) that the D.C.

Department of Consumer and Regulatory Affairs failed to

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prepare an environmental impact statement (“EIS”), contrary

to D.C. law; and (3) that the District’s pursuit of the Project

violated the Equal Protection Clause of the 14th Amendment

to the U.S. Constitution (made applicable to the District

through the Due Process Clause of the 5th Amendment). We

address them in that order and affirm the judgment, though in

certain cases on different grounds from those of the district

court.

* * *

The Wire Acts. To allow the construction of aerial wires

to supply the streetcars with power, the City Council passed

the “Wire Acts,” Transportation Infrastructure Emergency

Amendment Act of 2010, D.C. Act 18-486; Transportation

Infrastructure Congressional Review Emergency Act of 2010,

D.C. Act 18-583; Transportation Infrastructure Amendment

Act of 2010, D.C. Act 18-684 (codified at D.C. Code § 9-

1171(a) (2012)), in effect overturning a 1888 statute barring

the District from authorizing “telegraph, telephone, electric

lighting or other wires . . . on or over any of the [District’s]

streets or avenues.” 25 Stat. 323 (1888) (codified at D.C.

Code § 34-1901.01 (2012)). The Association complained that

the Wire Acts violated the 1888 statute; their claim must

surmount the Home Rule Act, which grants the City Council

broad (but not unlimited) authority to pass laws governing the

District. D.C. Code §§ 1-201.02(a), 1-206.02(a) (2012). The

district court ruled that the Association did not have standing

to challenge the District’s authorization of overhead wires.

We find standing, but reject the claim on the merits.

An association such as the plaintiff may establish

standing by showing either an injury to itself (“organizational

standing”), Havens Realty Corp. v. Coleman, 455 U.S. 363,

378 (1982), or a cognizable injury to one or more of its

members, Hunt v. Washington Apple Advertising Comm’n,

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432 U.S. 333, 342-43 (1977). The injury to members can

establish “associational standing” so long as the member

interests that the organization seeks to protect are germane to

its purposes and neither the claim nor the relief requires the

members’ participation. Id. The district court rejected both

theories, Kingman Park I, 27 F. Supp. 3d at 155-58; we

confine ourselves to associational standing, which we find to

have been established.

As the district court noted, two members of the

Association (Murray and Wiggins) filed declarations saying

that the wires would “adversely affect the clear and

unobstructed views” of the Spingarn High School and the

Langston Terrace, thus detracting from the aesthetic and

recreational value of areas that their declarations say they use.

Kingman Park I, 27 F. Supp. 3d at 156. These assertions are

uncontested, and we see no reason to doubt that the overhead

wires would have the effects stated and qualify as a concrete

injury, traceable to the District’s actions and remediable by an

injunction against those actions. Vindication of the two

members’ interests is germane to the purpose of the

Association, which the complaint describes as seeking “to

preserve and protect the historic buildings, scenic views,

integrity and environment within the District of Columbia and

specifically, the Kingman Park neighborhood.” Id. at 155.

No reason appears why the members’ participation in the

lawsuit would be necessary. Associational standing thus

exists for the challenge to the Wire Acts. As we will explain

shortly, this reasoning also applies to standing on the EIS and

equal protection issues.

On the merits of the Wire Acts claim, the Association

misreads the Home Rule Act. That Act prohibits legislation

by the Council “to amend or repeal any Act of Congress . . .

which is not restricted in its application exclusively in or to

the District,” D.C. Code § 1-206.02(a)(3) (2012); the 1888

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statute was “restricted” in exactly that way. Thus, especially

taking into account the Home Rule Act’s stated purpose—to

“relieve Congress of the burden of legislating upon essentially

local District matters,” D.C. Code § 1-201.02(a) (2012)—the

1888 provision is no obstacle to the Wire Acts.

Environmental Impact Statement. The Association

claims that the D.C. Department of Consumer and Regulatory

Affairs improperly failed to prepare an environmental impact

statement, in violation of the D.C. Environmental Policy Act,

D.C. Code § 8-109.03(a) (2012). The Association identified a

variety of harms that it said the District had inadequately

considered, including increased car traffic, electromagnetic

radiation from the overhead wires, noise, dust and particle

pollution, and water pollution. The district court dismissed

the EIS claim, in almost all instances on the ground that the

Department’s consideration of these issues, viewed in light of

the Association’s ill-substantiated assertions of more severe,

unacknowledged harms, was not arbitrary, capricious, or an

abuse of discretion, the undisputed standard of review.

Kingman Park II, 27 F. Supp. 3d at 178-83. See also D.C.

Code § 2-510(a)(3)(A) (2012); In re A.T., 10 A.3d 127, 123-

24 (D.C. 2010).

The parties agree that the Association has standing to

raise the EIS issue (and also the equal protection issues

discussed below). Although the district court found

organizational standing, Kingman Park II, 27 F. Supp. 3d at

178-83, we think it simpler to rely on associational standing,

in view of Association members’ declarations as to their

residence and use of the neighborhood and (in connection

with the equal protection claim) their being African American.

And there is no more problem here with regard to the second

and third requirements of Hunt than there was for the Wire

Acts claim.

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We uphold the district court’s dismissal of the EIS claim,

but in part on different grounds. We begin by noting that the

Association’s EIS claim regarding electromagnetic radiation

was waived because it was not raised in its Amended

Complaint. Kingman Park II, 27 F. Supp. 3d at 179. Among

the remaining arguments, we take here as an illustration the

Association’s strongest argument—the assertion of serious

traffic impacts, particularly around the Spingarn site, where

the streetcars would be stored; the other arguments are no

better. The district court mistakenly dismissed this claim on

the theory that the traffic impacts were only on the

“community” and thus not covered by the D.C. EPA.

Kingman Park I, 27 F. Supp. 3d at 162-63.

The D.C. EPA requires the preparation of an EIS

whenever a “major action [is proposed or approved] that is

likely to have a substantial negative impact on the

environment, if implemented.” D.C. Code § 8-109.03(a)

(2012). The statute in turn defines “environment” as “the

physical conditions that will be affected by a proposed action,

including but not limited to, the land, air, water, minerals,

flora and fauna.” D.C. Code § 8-109.02 (2012). In the district

court’s view, that language excludes impacts on the non-

natural environment such as traffic.

The statute also says that its “purpose . . . is to promote

the health, safety and welfare of District of Columbia . . .

residents, to afford the fullest possible preservation and

protection of the environment.” D.C. Code § 8-109.01

(2012). The sequence “health, safety, and welfare” appears

three times in the statute, and in none of them is the sequence

qualified by any limitation to the natural environment. This

language suggests inclusion of effects such as traffic and noise

felt primarily (or even exclusively, if such can be imagined) as

aspects of the human environment.

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Defending the district court ruling, the District notes that

the D.C. EPA differs from the federal equivalent, 42 U.S.C.

§ 4332(C), by omitting the word “human” as a modifier of the

protected “environment.” The logic escapes us. The word

“environment” would seem to encompass every environment,

whereas the “human environment,” if actually intended to be

different from the “environment,” appears narrower,

potentially excluding any “non-human” environment—though

as a practical matter such an exclusion would seem very

narrow in effect, given the human race’s near-ubiquity in the

portions of the universe where a government might undertake

a project.

Indeed, the suggestion that the (unmodified)

“environment” excludes community effects appears

hopelessly artificial. Traffic, for example, consists of vehicles

moving over the land and through air, impacting the surface,

emitting gases, and unleashing sound waves. We find it hard

to imagine a concept of the environment that would exclude

such effects (unless done so specifically). Unsurprisingly, the

District’s own Environmental Impact Screening Form asks

about traffic impacts. Government of the District of

Columbia, One City Street Car Line: H Street / Benning Road

NE, Environmental Impact Screening Form (EISF) & Related

Studies (“EISF and Related Studies”), Environmental Impact

Screening Form at 6.

Though we think reliance on the legislative history is

quite unnecessary, that history fits our interpretation:

The enactment of federal and state laws requiring the

preparation of EIS’s before undertaking major projects

that could potentially damage the environment have

proven worthwhile. . . . [S]imilar legislative measures

need to be enacted and implemented to further protect

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and preserve the human environment in the District of

Columbia.

D.C. Council, Report on Bill 8-8, District of Columbia

Environmental Policy Act of 1989, at 5 (June 5, 1989)

(emphasis added).

Given that traffic is within the scope of the D.C. EPA, we

now ask whether traffic associated with the Project was

“likely to have a substantial negative impact” requiring the

preparation of an EIS. The Department of Consumer and

Regulatory Affairs explicitly found that it was “not likely to

have” such an impact. Letter from Nicholas A. Majett,

Director of the D.C. Department of Consumer and Regulatory

Affairs to Faisl Hameed, District Department of

Transportation, regarding Environmental Impact Screening

Form (Feb. 27, 2013). It prepared a 38-page draft

“Transportation Technical Report” that it included as part of

its Environmental Impact Screening Form for the Project.

The report concludes that the Project would not have a

substantial impact on traffic conditions in any of the key

analyzed sections of the project area. EISF and Related

Studies, Transportation Technical Report at 41-43. The

analysis addresses the concern about traffic in and out of the

Spingarn site, noting that “travel in and out of the yard is only

expected to occur outside of peak analysis hours.” Id. at 10.

Given the deference we owe the agency, and the absence of

material conflicting evidence, we find no breach of the

Department’s obligation.

Thus we are unpersuaded by the Association’s strongest

argument regarding the District’s non-preparation of an EIS.

It follows that the district court must be affirmed with respect

to the substantively weaker EIS arguments.

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Equal Protection. The Association claims that the

District’s selection of an overwhelmingly African American

neighborhood for the installation of its first streetcar project,

which of course might prove to be the last, violated the Equal

Protection Clause. But the Supreme Court held in

Washington v. Davis, 426 U.S. 229, 242 (1976), that “a law

neutral on its face and serving ends otherwise within the

power of government to pursue, is [not] invalid under the

Equal Protection Clause simply because it may affect a greater

proportion of one race than of another.” Rather, a claim of

racial discrimination under the Equal Protection Clause

requires a showing of “racially discriminatory purpose.” Id. at

241.

The District did, indeed, cut significant procedural

corners, most particularly by giving only belated notice of the

construction decision to the local member of the Advisory

Neighborhood Commission. Kingman Park I, 27 F. Supp. 3d

at 150, 169-70; Kingman Park II, 27 F. Supp. 3d at 184;

Amended Complaint at 5; D.C. Code § 1-309.10 (2012). But

the Association has offered no evidence of a racially

discriminatory purpose for this failure. The affected area is

indeed predominantly African American. But so are many

parts of the District. The District has advocated the streetcar

program as a whole (a total of 37 miles) on the ground that it

will “provide high-capacity and high-quality transit service to

District residents and visitors,” and has expressed the hope

that the investment would “catalyze economic development.”

EISF and Related Studies, Transportation Technical Report, at

v. See also id., Historic Architectural Survey at 1. In framing

its purposes of selecting specific locations to start, the District

has said that its goal was “to transform nine underinvested

corridors into thriving and inviting neighborhood centers.” Id.

at 2. The Association doesn’t contest the application of those

purposes to the Spingarn School area. Accordingly the

Project and the associated site selection appear to have been

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facially neutral and to serve legitimate government purposes,

and thus do not run afoul of the Equal Protection Clause.

The Association makes several other claims that do not

warrant discussion in a published opinion. We affirm the

judgment of the district court on these other issues.

* * *

The judgment of the district court is

Affirmed.