Kingman Park Civic Association v. Gray

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

KINGMAN PARK CIVIC ASSOCIATION,

Plaintiff,

v. Civil Action No. 13-990 (CKK)

VINCENT C. GRAY,

Defendant.

MEMORANDUM OPINION
(September 29, 2014)

Plaintiff Kingman Park Civic Association (“Kingman Park”) filed suit against Vincent C.

Gray in his official capacity as the Mayor of the District of Columbia, challenging aspects of the

District’s plan to construct a streetcar line in the northeast quadrant of the District. Defendant

moved the Court to dismiss the Amended Complaint or, in the alternative, to enter summary

judgment for Defendant. On May 14, 2014, the Court dismissed all counts of Plaintiff’s

Amended Complaint, except Counts II and VI, which the Court held in abeyance pending

Defendant’s production of certain documents related to the environmental impact of streetcar

construction on the campus of Spingarn Senior High School. Defendant produced these

documents on May 22, 2014, and the Court subsequently ordered the parties to file supplemental

briefing addressing Plaintiff’s claim that Defendant violated the District of Columbia

Environmental Policy Act of 1989, D.C. Code § 8-109.01 et seq. (“D.C. EPA”) by failing to

prepare an Environmental Impact Statement for the construction on the Spingarn campus.

Presently before the Court are the parties’ supplemental briefs on this discrete issue. Upon

1
consideration of the pleadings,1 the relevant legal authorities, and the record as a whole, the

Court finds that Plaintiff has failed to support the claim that Defendant violated the D.C. EPA by

not preparing an EIS for the Spingarn construction. As a result, Plaintiff has also failed to

present sufficient evidence to support his equal protection claim or a 42 U.S.C. § 1983 claim.

Accordingly, the Court GRANTS Defendant’s [29] Motion to Dismiss or, in the alternative, for

Summary Judgment and dismisses this action in its entirety.

I. BACKGROUND

The Court shall only discuss the facts relevant to the immediate decision before the Court

as the facts underlying this motion have been detailed at length in the Court’s previous opinion

Kingman Park Civic Association v. Gray, ---F. Supp.2d---, 2014 WL 1920496 (D.D.C. May 14,

2014).

In Count VI of Plaintiff’s Amended Complaint, Plaintiff alleges that Defendant violated

section 4 of the D.C. EPA by failing to prepare an Environmental Impact Statement (“EIS”)

regarding the anticipated construction of a streetcar car barn on the Spingarn campus. Am.

Compl. ¶¶ 83-85. The car barn will be used to house streetcars while not in operation and will

also serve as an operations and maintenance facility. Id. ¶ 14. The D.C. EPA provides that

Whenever the Mayor or a board, commission, authority, or person proposes or
approves a major action that is likely to have substantial negative impact on the
environment, if implemented, the Mayor, board, commission, authority, or person
shall prepare or cause to be prepared, and transmit, in accordance with subsection
(b) of this section, a detailed EIS at least 60 days prior to implementation of the
1
Defendant’s Notice in Accordance with the Court’s May 14, 2014, Order (“Def.’s
Notice”), ECF No. [40]; Defendant’s Supplemental Memorandum (“Def.’s Supp. Mem.”), ECF
No. [44]; Plaintiff’s Supplemental Opposition to the Motion to Dismiss or in the Alternative for
Summary Judgment and Response to the District’s Justification for its Failure to Prepare an
Environmental Impact Statement Before Construction of a Streetcar Maintenance Garage,
Carwash and Electrical Substation on the Spingarn Senior High School Campus (“Pl.’s Opp’n”),
ECF No. [45]; Defendant’s Supplemental Reply Memorandum in Further Support of its Motion
to Dismiss the Amended Complaint or, in the Alternative, for Summary Judgment (Def.’s Supp.
Reply), ECF No. [46].
2
 proposed major action, unless the Mayor determines that the proposed major
action has been or is subject to the functional equivalent of an EIS.

D.C. Code § 8-109.03(a) (emphasis added). Plaintiff alleges that the preparation of an EIS was

required because “the proposal would have a major adverse impact” “due to traffic and

community impact,” noting that placing the car barn on the Spingarn campus “would involve the

streetcar tracks crossing the westbound travel lanes from the median into the yard adjacent to

Spingarn High School.” Id. ¶ 84. (emphasis added). Count VI of Plaintiff’s Amended

Complaint goes on to list three bullet points of additional alleged “[d]amage that would be result

[sic] from excavation and construction work on the Spingarn Site”: (1) “The release of dust and

other contaminants into the air such as lead, chromium, mercury, arsenic and seimi-volatile [sic]

organics;” (2) “The creation of storm water and sewage run-off that will damage over 500

homes;” and (3) “The damage from excavation and construction vibration to over 500 homes.”

Id.

In its May 14, 2014, Memorandum Opinion, the Court held that Plaintiff’s reliance on

community and traffic impact was insufficient to state a claim under the D.C. EPA because the

D.C. EPA only requires an EIS if the project is likely to have a substantial negative impact on the

environment, which is defined 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.” See Mem.

Op. (May 14, 2014), ECF No. [39], at 24-25 (quoting D.C. Code § 8-109.02(3)). The Court

further held that damage to “over 500 homes” due to “storm water and sewage run-off” and

“excavation and construction vibration” could also not trigger the need for an EIS as it focuses

on homes and not the environment. Id. at 25. The Court did find, however, that “the release of

dust and other contaminants into the air” is an “impact that fits more clearly into the definition of

‘environment’ set forth in the D.C. EPA.” Id.

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 It was unclear to the Court, however, whether this allegation of environmental impact

alone amounted to “substantial negative impact” triggering the EIS requirement as neither

Plaintiff’s Opposition nor Defendant’s briefing provided sufficient guidance with respect to this

issue. Instead, Defendant simply argued that “the undisputed evidence indicates that the District

was not required to prepare an EIS in this instance” and pointed to the District of Columbia

Department of Consumer and Regulatory Affairs’ (“DCRA”) determination, based on its review

of the Environmental Impact Screening Form2 (“EISF”), that the construction on Spingarn

campus is “not likely to have substantial negative impact on the environment, and [the]

submission of an Environmental Impact Statement (EIS) [was] not required.” Def.’s Mot., ECF

No. [29], at 27-28. However, at the time of the initial briefing, Defendant had not produced the

EISF on which the DCRA relied and Plaintiff, in its Opposition, was requesting discovery of

“environmental research documents and files, and documents relevant to the construction of . . .

the Spingarn streetcar maintenance facility excavation and construction.” Pl.’s Opp’n, ECF No.

[30], at 18, 19. Accordingly, the Court found that this claim and Plaintiff’s request for discovery

would be most expeditiously resolved by Defendant producing the EISF and related agency

recommendations and environmental reports. See Mem. Op. (May 14, 2014), at 26.

The Court held in abeyance Defendant’s Motion as to Count VI pending Defendant’s

production of the EISF and the related agency recommendations and environmental reports.

2
To determine if a project is “likely to have substantial negative impact on the
environment”—thereby requiring the preparation of an EIS—a project proponent is required to
complete an Environmental Impact Screening Form (“EISF”). 20 DCMR § 7201.1; Foggy
Bottom Ass’n v. District of Columbia Zoning Commission, 979 A.2d 1160, 1164 (D.C. 2009).
The D.C. EPA’s implementing regulations provide that the EISF be filed “with the lead agency
for review and determination of whether an EIS is required.” 20 DCMR § 7204.2. The lead
agency must make a “written determination . . .whether or not the action is likely to have
substantial negative impact on the environment, and whether an EIS is required.” 20 DCMR §
7205.1. The DCRA has been designated by the Mayor as the “lead agency” having primary
responsibility coordinating preparation of an EIS. Def.’s Supp. Mem. at 2.
4
Since Plaintiff’s equal protection claim (Count II) depended in part on the viability of Plaintiff’s

D.C. EPA claim, the Court also held in abeyance Count II. Finally, the Court held in abeyance

its consideration of Plaintiff’s D.C. EPA claim in the context of a § 1983 action.

Defendant produced the EISF and related reports on May 22, 2014. The Court

subsequently ordered supplemental briefing on the sole issue of “whether Defendant violated the

D.C. EPA by not conducting an EIS.” Order (May 27, 2014), ECF No. [41], at 2. Having

received the parties’ supplemental briefing, this remaining issue is now ripe for review.

II. LEGAL STANDARD

As the parties and the Court rely extensively on documents outside Plaintiff’s

Complaint—notably the EISF and related reports—to resolve Plaintiff’s D.C. EPA claim, the

Court will treat Defendant’s motion as to this remaining claim as a Motion for Summary

Judgment. See Highland Renovation Corp. v. Hanover Ins. Group, 620 F.Supp.2d 79, 82

(D.D.C. 2009) (“When ‘matters outside the pleadings are presented to and not excluded by the

court’ on a motion to dismiss under Rule 12(b)(6), ‘the motion must be treated as one for

summary judgment[.]’ ”). “[W]hen a party seeks review of agency action . . . the district judge

sits as an appellate tribunal. The ‘entire case’ on review is a question of law.” Am. Bioscience,

Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001). Accordingly, “the standard set forth

[for summary judgment] in [Federal] Rule [of Civil Procedure] 56 does not apply because of the

limited role of a court in reviewing the administrative record . . . . Summary judgment is [ ] the

mechanism for deciding whether as a matter of law the agency action is supported by the

administrative record and is otherwise consistent with the APA standard of review.” Southeast

Conference v. Vilsack, 684 F.Supp.2d 135, 142 (D.D.C. 2010).

5
 To prevail on its D.C. EPA claim, the plaintiff must show that the agency’s determination

that preparing an EIS for the challenged project was not necessary was “[a]rbitrary, capricious,

an abuse of discretion, or otherwise not in accordance with law.”3 D.C. Code § 2-510(a)(3)(A);

see also Kegley v. District of Columbia, 440 A.2d 1013, 1019 (D.C. 1982) (holding that the

Superior Court, in reviewing agency action, “uses the precise scope of review [the Court of

Appeals] employ[s] in reviewing contested cases”); accord Dep’t of Transp. v. Public Citizen,

541 U.S. 752, 763 (2004) (“An agency’s decision not to prepare an EIS can be set aside only

upon a showing that it was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law.’ ” (quoting 5 U.S.C. § 706(2)(A)). An agency's decision may

be arbitrary or capricious if any of the following apply: (i) its explanation runs counter to the

evidence before the agency or is so implausible that it could not be ascribed to a difference of

view or the product of agency expertise; (ii) the agency entirely failed to consider an important

aspect of the problem or issue; (iii) the agency relied on factors which Congress did not intend

the agency to consider; or (iv) the decision otherwise constitutes a clear error of

judgment. Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S.

3
In its Supplemental Reply, Defendant argues that Plaintiff’s claim that the DCRA’s
determination that an EIS was unwarranted was arbitrary, capricious, or an abuse of discretion is
not properly before the Court because Plaintiff’s Amended Complaint does not challenge the
determination as arbitrary and capricious. The Court finds Defendant’s argument both
unpersuasive and disingenuous. “Arbitrary and capricious” is the legal standard that the Court
must apply to a challenge, like Plaintiff’s, to a decision not to prepare an EIS. Defendant itself
acknowledges that the decision whether to prepare an EIS is a decision committed to the
discretion of an administrative agency and should only be reviewed under the “arbitrary and
capricious” standard. Def.’s Supp. Mem. at 2-3. Moreover, in Defendant’s response to
Plaintiff’s Motion for a Preliminary Injunction in July 2013, Defendant argued that Plaintiff was
not likely to succeed on its D.C. EPA claim because “Plaintiff has not identified any basis upon
which the Court could determine DCRA’s finding to be arbitrary, capricious, an abuse of
discretion, or otherwise contrary to law.” Def.’s Preliminary Injunction Opp’n, ECF No. [8], at
26. Since Plaintiff’s Motion for a Preliminary Injunction, the Court has generously read
Plaintiff’s Amended Complaint as inherently alleging that Defendant’s decision not to prepare an
EIS was arbitrary, capricious, an abuse of discretion, or otherwise contrary to law.
6
29, 43 (1983); accord Jicarilla Apache Nation v. U.S. Dep't of Interior, 613 F.3d 1112, 1118

(D.C. Cir. 2010).

III. DISCUSSION

A. Jurisdiction

As an initial matter, Defendant argues for the first time in its Supplemental Reply that

this Court lacks jurisdiction over Plaintiff’s D.C. EPA claim for three reasons. The Court is

mindful of the fact that Plaintiff has not had an opportunity to respond to any of these

jurisdictional arguments due to the exceedingly late stage at which Defendant raised these

arguments. Nevertheless, as the Court finds that none of Defendant’s arguments bar the Court’s

review of the merits of Plaintiff’s D.C. EPA claim, the Court finds that its consideration of these

arguments without affording Plaintiff an opportunity to respond will not prejudice Plaintiff.

First, Defendant argues that the Court lacks jurisdiction to consider Plaintiff’s D.C. EPA

claim because the D.C. EPA “does not provide an independent right of judicial review of an

agency’s written determination with respect to an EISF, but rather only contemplates judicial

review “[w]here an EIS is prepared[.]” Def.’s Supp. Reply at 4. In support of this argument,

Plaintiff cites to D.C. Code § 8-109.08 which states:

Where an EIS is prepared in connection with the issuance or approval of a lease,
permit, license, certificate, or any other entitlement or permission to act by a
District government agency that is subject to administrative or judicial review
under applicable laws or regulations, the administrative or judicial review shall be
governed by the applicable laws and regulations.

Although Defendant attempts to construe this provision, which is labeled “Judicial Review,” as

limiting judicial review to EISes that have been prepared, this provision does little more than

clarify the laws and regulations which shall govern review of an EIS. This provision no more

establishes a right to judicial review of an EIS than it precludes review of an agency’s failure to

7
prepare an EIS. Accordingly, the Court rejects Defendant’s argument based on this statutory

provision that the D.C. EPA does not provide an independent right of judicial review of an

agency’s decision not to prepare an EIS.

Defendant next argues that Plaintiff’s challenge to the DCRA’s determination is time

barred under the District of Columbia’s rules providing for judicial review of agency action.

Def.’s Supp. Reply at 4. Defendant cites to District of Columbia Superior Court Civil Rule 1

which provides that an appeal to the Superior Court of the District of Columbia of an agency

action must be made “within 30 days after service of formal notice of the final decision to be

reviewed or within 30 days after the decision to be reviewed becomes a final decision.” Super.

Ct. Civ. R. Agency Review 1. Defendant’s reliance on this rule, however, is misplaced for two

reasons. First, this rule applies to appeals under the District of Columbia’s Merit Personnel

Act—a statute not at issue here. Second, procedural rules of the local District of Columbia

courts have no impact on this federal Court’s jurisdiction. Accordingly, the Court rejects

Defendant’s second jurisdictional argument.

Finally, Defendant argues that the D.C. Circuit discourages courts in this District from

exercising supplemental jurisdiction over claims challenging administrative decisions by the

District of Columbia. Def.’s Supp. Reply. at 4. It is true that the D.C. Circuit in Lightfoot v.

District of Columbia, 448 F.3d 392 (D.C. Cir. 2006), held that it “might” be “unwise to exercise

supplemental jurisdiction over [a D.C. Administrative Procedures Act] claim. 448 F.3d at 399.

The language of this case makes clear, however, that a federal district court is by no means

barred from exercising supplemental jurisdiction over a District of Columbia administrative

decision. Id. (acknowledging that courts in the D.C. Circuit have not been consistent in

declining to exercise supplemental jurisdiction over District of Columbia administrative claims).

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Particularly where, as here, the Court finds that there is no merit to any of Plaintiff’s attacks to

Defendant’s administrative determination, this Court finds there is no problem with exercising

supplemental jurisdiction even where exercising such jurisdiction is otherwise discouraged.

Accordingly, the Court shall exercise supplemental jurisdiction over Plaintiff’s claim that

Defendant’s decision not to prepare an EIS was arbitrary, capricious, an abuse of discretion, or

otherwise contrary to law.

B. Defendant’s Decision Not to Prepare an EIS

In Plaintiff’s Supplemental Opposition, Plaintiff presents two overarching arguments for

why Defendant’s decision not to prepare an EIS was arbitrary, capricious, an abuse of discretion,

or otherwise contrary to law. First, Plaintiff argues that Defendant was required to prepare an

EIS regardless of the environmental impact by the Spingarn construction due to the nature of the

project and the fact that the District of Columbia is governed by a Comprehensive Plan. Second,

Plaintiff points to five issues to which, Plaintiff contends, Defendant either did not give proper

consideration or gave false or misleading information: (1) dust and particle pollutants, (2) noise

and vibration, (3) flood zone and storm water run-off, (4) traffic congestion, and (5)

electromagnetic radiation and electrical current.

As Plaintiff did not allege in his Amended Complaint that “electromagnetic radiation and

electrical current” were potential environmental impacts warranting the preparation of an EIS,

see Am. Compl. ¶¶ 83-85, the Court will not consider this argument.4 See Perkins v. Vance-

Cooks, 886 F. Supp. 2d 22, 29 n.5 (D.D.C. 2012) (“It is settled law in this circuit that a plaintiff

may not raise new allegations in [his Opposition].”). Moreover, in its May 14, 2014,

Memorandum Opinion, the Court already determined that Plaintiff’s allegation that traffic
4
Moreover, in its May 14, 2014, Memorandum Opinion, the Court found the health risk
due to electromagnetic radiation created by the streetcars was, at best, speculative, even
according to the study relied upon by Plaintiff. See Mem. Op. (May 14, 2014), at 15-16.
9
congestion will have an impact on the community does not support Plaintiff’s claim that

Defendant was required to prepare an EIS. Mem. Op. (May 14, 2014), at 24. Since Plaintiff

simply reiterates this argument in its Supplemental Opposition, the Court will not reconsider this

argument. The Court will also not consider Plaintiff’s arguments as they relate to noise impact

or flood zone concerns since Plaintiff made no allegations regarding either of these impacts in

Count VI of its Amended Complaint. See Perkins, 886 F. Supp. 2d at 29 n.5.

Accordingly, the Court will only consider in depth (1) whether Defendant was required to

prepare an EIS regardless of whether there was any potential environmental impact by the

Spingarn construction and (2) whether Defendant’s consideration of the environmental impact of

dust and particle pollutants, vibration, and storm water run-off from the construction on Spingarn

campus shows Defendant’s decision not to prepare an EIS was arbitrary, capricious, an abuse of

discretion, or otherwise contrary to law.

1. Preparing an EIS Regardless of Environmental Impact

Plaintiff contends that the Supreme Court held in Kleppe v. Sierra Club, 427 U.S. 390

(1976), that “where a comprehensive plan is prepared covering a particular location, the

development of that specific area or location should require the preparation of an environmental

impact statement.” Pl.’s Supp. Opp’n at 4. Because a Comprehensive Plan exists for

development in the District of Columbia that covers the Spingarn campus area, Plaintiff argues

that, per Kleppe, preparation of a full EIS is automatically required for any development on

Spingarn campus. Id. at 5. The Court finds Plaintiff’s reading of Kleppe misguided. In Kleppe,

the only issue before the Court was whether the National Environmental Policy Act, 42 U.S.C. §

4321 et seq.—a statute not implicated in the present case—required an EIS to be prepared for the

entire Northern Great Plains region in light of the proposed development in that case. 427 U.S.

10
at 398 (emphasis added). The Court only considered the necessary scope of the EIS. See id. at

399. The Court held that where a proposed major federal action was of regional scope or part of

a larger comprehensive plan, any EIS prepared in relation to that action should also be of

regional scope. Id. The Court did not hold that a major action related to a comprehensive plan

necessarily requires an EIS.

Plaintiff’s reading of Kleppe would require preparation of an EIS for any project at a

location covered by the District’s Comprehensive Plan, regardless of the project’s impact on the

environment. This reading would render superfluous the D.C. EPA’s clear language that an EIS

is required for “major actions likely to have substantial negative impact on the environment[.]”

D.C. Code § 8-109.03(a) (emphasis added). Accordingly, the Court finds that the holding in

Kleppe in no way requires Defendant to prepare an EIS for the Spingarn construction solely

because the District has a Comprehensive Plan.

Plaintiff also argues that the DDOT Environmental Policy and Process Manual and DC

Municipal Regulations require Defendant to prepare an EIS for the Spingarn construction,

regardless of the project’s impact on the environment. Pl.’s Supp. Opp’n at 6-7. Plaintiff points

to language in the DDOT Manual which states that “[a]n EIS is prepared for projects that are

defined under 23 CFR 771.115, or for which FHWA [the Federal Highway Administration] has

determined individually that an EIS is required. Some examples of the types of projects

normally requiring the preparation of an EIS include: . . . [n]ew construction or extension of

fixed rail transit facilities.” DDOT Environmental Policy and Process Manual, § 8.1.3.

Plaintiff also points to language in the D.C. Municipal Regulations, stating that it is a District

policy to “[r]equire full environmental impact statements for major transportation projects,

11
including new roadways, bridges, [and] transit systems . . . .” 10-A DCMR § 403.7 (emphasis

added).

The Court rejects Plaintiff’s interpretation of the DDOT Manual and the municipal

regulations as requiring an EIS for the Spingarn construction simply because it is a transit

project. Most importantly, it is well-established law that policy manuals and agency guidelines

do not have force of law over statutes such as the D.C. EPA. See Christensen v. Harris County,

529 U.S. 576, 587 (2000) (explaining that “policy statements, agency manuals, and enforcement

guidelines” all “lack the force of law”); Jolly v. Listerman, 672 F.2d 935, 940-41 (D.C. Cir.

1982) (explaining that “not every piece of paper emanating from” an agency is “a binding rule,”

especially where the language is more “informative” than “directive or mandatory” (citation

omitted)). In addition, the DDOT Manual only provides that the construction of rail transit

facilities will “normally” require an EIS. DDOT Environmental Policy and Process Manual, §

8.1.3 (emphasis added).5 The Manual simply lists rail transit facilities as one of several

examples of projects that may likely require an EIS, not projects that by definition require an EIS.

The Manual in no way suggests that it trumps the language of the D.C. EPA demarcating the

instances in which an EIS is required; indeed, its use of the term “normally” recognizes that there

are other considerations to be taken into account in determining whether an EIS is required.

As for the D.C. Municipal Regulation to which Plaintiff cites, this provision is part of the

District of Columbia Comprehensive Plan. As the Court has previously recognized, the D.C.

Comprehensive Plan is “a non-self-executing set of policy guidelines—not binding policy

directives.” Mem. Op. (May 14, 2014), at 35 (citing Tenley & Cleveland Park Emergency

Comm. v. D.C. Bd. Of Zoning Adjustments, 550 A.2d 330, 336-37 (D.C. 1988). Thus, the

5
Available online at: http://ddot.dc.gov/page/ddot-environmentalpolicy-and-process-
manual-0 (last visited September 29, 2014).
12
provision’s seemingly mandatory language “requir[ing]” a full EIS for transit system projects, is

no more than a policy guideline that does not trump the clear statutory language of the D.C.

EPA. Accordingly, the Court rejects Plaintiff’s argument that the DDOT Environmental Policy

and Process Manual or D.C. Municipal Regulations require an EIS for the Spingarn construction

project regardless of the project’s environment impact.

2. Alleged Insufficiencies in the EISF

a. Dust and Particle Pollutants

Plaintiff argues that Defendant’s decision not to prepare an EIS was arbitrary and

capricious because it was based on an EISF that fails to address the level of dust and pollutants

that will be generated from the construction and use of the streetcar facility. Pl.’s Supp. Opp’n at

9. Specifically, Plaintiff alleges that “[n]owhere in the District’s Air Quality Analysis Technical

Report [AQATR] does the defendant address the level of dust and pollutants released into the

environment surrounding Spingarn and the residents adversely affected by the construction and

site location.” Id. at 9-10. Plaintiff, however, does not point to any evidence to support its

apparent conclusion that dust and pollutants will be released into the environment and have a

significant environmental impact from the construction or use of the car barn on the Spingarn

campus. Instead, Plaintiff only posits a question, inquiring about the “affect [sic] [ ] the dust and

air participles [will] have on nearby residents.” Id. at 10. Although the AQATR does not

address particle pollution due to construction on the Spingarn campus, it does, contrary to

Plaintiff’s broad assertion, evaluate particle pollution in connection with the eventual operation

of the streetcar project. The AQATR states that air quality monitoring data “indicates

compliance with current [National Ambient Air Quality Standards]” and that “project

implementation would result in a slight decrease in local diesel-related emissions of PM2.5

13
[particles], helping to contribute to the trend of improving local air quality.” ECF No. [40-2], at

71-72 (emphasis added).

As for particle pollution due to the construction on the Spingarn campus, the reports

supporting the EISF show that soil samples taken from the Spingarn campus did not reveal the

presence of any contaminant in a concentration considered a significant risk to human health or

the environment and thus presented “no significant indicators of environmental concern.”6 ECF

No. [40-2], at 222. The Court also notes that Defendant is required by the District Department of

the Environment to control “fugitive dust” throughout the construction. See 20 DCMR § 605;

ECF No. [40-3], at 16. In light of this evidence and the fact that Plaintiff has failed to point to

any contrary evidence of concerning dust and particle pollution from the construction or use of

the streetcar project on the Spingarn campus, the Court finds that Plaintiff has produced de

minimis, if any, evidence to support its claim that Defendant’s determination not to prepare an

EIS was arbitrary, capricious, an abuse of discretion, or otherwise contrary to law.

6
Plaintiff attaches to its Supplemental Opposition a declaration by Harry H. Herman, Jr.,
an engineering consultant, which raises concerns about the standards Defendant used to assess
the soil contamination on the Spingarn campus. See Pl.’s Supp. Opp’n, Ex. 3 (Herman Decl.),
ECF No. [45-3]. Mr. Herman contends that Defendant’s use of the State of Maryland
Department of the Environment standards for assessing the concentrations of metals in soil
samples is “erroneous and misplaced” because “[s]oil condition standards for Maryland cannot
be equated to those of the District of Columbia and specifically the Kingman Neighborhood.”
Herman Decl. ¶ 5. Mr. Herman claims that the U.S. EPA standards are the proper measure for
soil contamination. Id. ¶ 6. Mr. Herman also argues that Defendant is improperly using
“standards for industrial soil screening levels at the Spingarn site rather than standards for
residential soil screening levels.” Id. ¶ 14. The Court finds that Mr. Herman’s declaration does
not support a finding that it was arbitrary and capricious for Defendant to rely on its soil
contamination study in determining that the preparation of an EIS was unwarranted. First of all,
Plaintiff does not make use of Mr. Herman’s declaration in its Opposition or make any of these
arguments about proper standards in its Opposition. More importantly, Mr. Herman offers no
support or even explanation for his conclusions beyond the bald assertions detailed above.
Moreover, Mr. Herman does not specifically set forth what the proper standards would be nor
does he in any way suggest that the soil contamination levels on the Spingarn campus would
have exceeded those standards.

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 b. Vibration and Storm Water Run-Off Concerns

At the outset, the Court notes that, in its May 14, 2014, Memorandum Opinion, the Court

already determined that Plaintiff’s allegations that “storm water and sewage run-off” and

“excavation and construction vibration” will damage “over 500 homes” could not “trigger the

need for an EIS as they focus on homes and not the environment.” Mem. Op. (May 14, 2014), at

25. Apparently in response to the Court’s holding, Plaintiff argues in its Supplemental

Opposition that damage to “approximately 500 homes resulting from the Spingarn streetcar

construction would constitute damage to the land as a physical condition of the environment”

and thus falls under the D.C. EPA’s definition of “environment.” Pl.’s Supp. Opp’n at 3.

Although Plaintiff cites the D.C. EPA’s definition of environment,7 which is defined as including

“land,” the statutory language in no way clearly includes homes within the term “land,” and

Plaintiff cites to no other authority supporting such a reading.

In any event, even if the Court were to adopt Plaintiff’s unsupported reading of the D.C.

EPA, the Court finds that Plaintiff’s arguments regarding Defendant’s consideration of vibration

and storm water run-off concerns do not support a finding that Defendant’s decision not to

prepare an EIS was arbitrary, capricious, an abuse of discretion, or otherwise contrary to law.

As for vibration concerns, Plaintiff alleges that “nowhere in the District’s noise and

vibration study does the District analyze the effect on the residents of Langston Dwellings

Apartments or on the residential homes located directly across the street from Spingarn on

Benning Road N.E.” Pl.’s Supp. Opp’n at 11. The Court finds Plaintiff’s assertion directly

contradicted by the record. The “Noise and Vibration Technical Report for H Street Benning

Road Streetcar Project,” a study prepared in relation to the EISF, clearly reflects that analyses
7
The D.C. EPA 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(3).
15
were conducted of the vibration impact of the streetcar and Spingarn construction on residential

homes located near the Spingarn campus. See ECF No. [40-2], at 110-11, 116-118.

Accordingly, the Court finds that Plaintiff has failed to present any evidence that Defendant’s

decision not to prepare an EIS was arbitrary, capricious, or an abuse of discretion because

Defendant did not sufficiently evaluate vibration concerns.

As for storm water run-off concerns, nearly all of Plaintiff’s arguments are focused on

ground and surface water contamination. However, Plaintiff’s Amended Complaint focused

exclusively on “storm water and sewage run-off that will damage over 500 homes.” Am. Compl.

¶ 84 (emphasis added). As the allegations about water contamination were not raised in

Plaintiff’s Amended Complaint the Court will not consider them. See Perkins, 886 F. Supp. 2d

at 29 n.5. Plaintiff does make one argument that the Court will generously construe as

addressing the potential impact of water run-off on nearby homes. Plaintiff contends that the

EISF incorrectly states that there are no springs or streams within 100 feet of the project because

the District’s own “Geoarchaeological Survey – H Street/Benning Road Street Car Project”

states that “the 1945 and 1951 USGS topographic map [sic] show a 0-Order stream dissecting

the natural ground surface near this location.” Pl.’s Supp. Opp’n at 12. Plaintiff argues that

Defendant’s decision not to prepare an EIS was arbitrary, capricious, and an abuse of discretion

because Defendant failed to consider the effect that construction “will have on the flow of the

underground stream, and damage to the physical environment in Kingman Park.” Id. at 12-13.

The Court finds that Plaintiff has failed to present evidence from which a reasonable trier

of fact could conclude that there is currently a stream flowing under the Spingarn location.

Plaintiff only points to the statement in the Geoarchaeological Survey that “[t]he 1945 and 1951

USGS topographic maps show a 0-order stream flowing under this area”—evidence that by itself

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does not support the conclusion that such a stream, which is the smallest order of stream,

continues to flow over sixty years later. ECF No. [40-2], at 43. Moreover, the next sentence in

the Geoarchaeological Survey clearly states that “[c]onstruction of the school apparently

included the filling of this area,” presumably referring to the Spingarn campus. Id. at 44. As a

result, the Court finds that Plaintiff has presented de minimis, if any, evidence to support its

claim that Defendant made a false statement on the EISF or failed to consider the effect of

construction on the flow of the underground stream. Accordingly, Defendant’s decision not to

prepare an EIS cannot be considered arbitrary, capricious, or an abuse of discretion on this basis.

c. Conclusion

As Plaintiff has presented de minimis, if any, evidence that Defendant failed to properly

consider any environmental concern—much less a concern presenting a potentially significant

impact on the environment—in evaluating whether an EIS was required, the Court finds that

Plaintiff has failed to show that Defendant’s decision not to prepare an EIS was arbitrary,

capricious, an abuse of discretion, or otherwise contrary to law. Accordingly, the Court enters

summary judgment in Defendant’s favor on Count VI of Plaintiff’s Amended Complaint.

C. Equal Protection and § 1983 Claims

Since the Court finds that Plaintiff has failed to support its claim that Defendant’s

decision not to prepare an EIS was arbitrary, capricious, an abuse of discretion, or otherwise

contrary to law, the Court also finds that Plaintiff has failed to state an equal protection or a §

1983 claim as they rely on the Court concluding that Defendant violated the D.C. EPA.

As the Court explained in its May 14, 2014, Memorandum Opinion, Plaintiff presented

two types of equal protection claims in its Amended Complaint. The version the Court held in

abeyance alleged that the decision to construct the car barn on the Spingarn campus was based

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on the fact that the Kingman Park community is predominantly African-American. See Mem.

Op. (May 14, 2014), at 20. “Determining whether invidious discriminatory purpose was a

motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of

intent as may be available.” Vill. of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S.

252, 266 (1977). As part of this inquiry, the Court considers, among other things, (1) whether

the impact of the official action “bears more heavily on one race than another”; (2) “[t]he

historical background of the decision”; (3) “[t]he specific sequence of events leading up to the

challenged decision,” including whether the defendant departed from the “normal procedural

sequence”; (4) “[s]ubstantive departures” from factors normally considered in reaching a

decision; and (5) the administrative history of a decision. Id. at 266-268. Plaintiff alleges five

factors that demonstrate the District’s decision to construct the car barn on the Spingarn campus

was motivated by the fact that Kingman Park is predominantly African-American. Mem. Op.

(May 14, 2014), at 20-21. Defendant’s alleged violation of the D.C. EPA for failing to prepare

an EIS was one of these factors. As the Court has found that Defendant’s decision not to prepare

an EIS was not arbitrary, capricious, an abuse of discretion, or otherwise contrary to law, this

factor does not lend weight to the conclusion that Defendant acted with a discriminatory purpose

in constructing the car barn on the Spingarn campus. In its May 14, 2014, Memorandum

Opinion, the Court addressed the other four factors alleged by Plaintiff and found that only

one—the District’s failure to notify ANC Commissioner Blacknell of the proposed construction

in violation of D.C. Code § 1309.10 ANC notice requirements—was sufficient to support the

conclusion that Defendant departed from the “normal procedural sequence” in selecting the

Spingarn campus for the car barn. Mem. Op. (May 14, 2014), at 21-22. However, the Court

found this allegation, by itself, insufficient to raise an inference of invidious discriminatory

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purpose. Id. at 22. As this allegation is now the only allegation that could even suggest a

discriminatory purpose, the Court finds that Plaintiff has failed to state an equal protection claim.

Plaintiff’s 42 U.S.C. § 1983 claim based on Defendant’s alleged violation of the D.C.

EPA also lacks merit. As the Court explained in its prior opinion, “[t]o state a claim for relief in

an action brought under § 1983, [plaintiffs] must establish that they were deprived of a right

secured by the Constitution or laws of the United States, and that the alleged deprivation was

committed under color of state law.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50

(1999). “A mere state law violation does not give rise to a substantive due process violation,

although ‘the manner in which the violation occurs as well as its consequences are crucial factors

to be considered.’ ” Tri County Industries, Inc. v. District of Columbia, 104 F.3d 455, 459 (D.C.

Cir. 1997) (citing Comm. of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 944

(D.C. Cir. 1988)). “Only (1) a substantial infringement of state law prompted by personal or

group animus, or (2) a deliberate flouting of the law that trammels significant personal or

property rights, qualifies for relief under § 1983.” George Washington Univ. v. District of

Columbia, 318 F.3d 203 (D.C. Cir. 2003) (citing Silverman v. Barry, 845 F.2d 1072, 1080 (D.C.

Cir. 1988)). As Plaintiff has produced de minimis, if any, evidence from which a reasonable trier

of fact could conclude that Defendant’s decision not to prepare an EIS was arbitrary, capricious,

an abuse of discretion, or otherwise contrary to law, the Court finds that Defendant’s decision

not to prepare an EIS does not rise to the level of qualifying for relief under § 1983.

IV. CONCLUSION

For the foregoing reasons, the Court finds that Plaintiff has failed to present sufficient

evidence to support its claim that Defendant’s decision not to prepare an EIS was arbitrary,

capricious, an abuse of discretion, or otherwise contrary to law. Accordingly, the Court enters

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judgment in Defendant’s favor on Count VI of Plaintiff’s Amended Complaint. As Plaintiff has

failed to show that Defendant violated the D.C. EPA by failing to prepare an EIS, Plaintiff’s §

1983 claim which relies on that alleged violation must also be dismissed. Likewise, Plaintiff’s

equal protection claim (Count II) must be dismissed since Plaintiff has failed to point to evidence

that would allow a reasonable trier of fact to infer discriminatory purpose in Defendant’s

decision to construct a car barn on the Spingarn campus. Accordingly, Defendant’s [29] Motion

to Dismiss or, in the alternative, for Summary Judgment is GRANTED.

/s/
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE

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