Kingman Park Civic Assoc. v. Vincent Gray

Filing

OPINION [1602814] filed (Pages: 10) for the Court by Judge Williams. [14-7168]

USCA Case #14-7168

Document #1602814

Filed: 03/08/2016

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 § 91171(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, 12324 (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 nonnatural 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.

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