United States District Court, D. Columbia.
[Copyrighted Material Omitted]
For Kingman Park Civic Association, Plaintiff: Frazer Walton, Jr., LEAD ATTORNEY, LAW OFFICE OF FRAZER WALTON, JR., Washington, DC USA.
For Vincent C. Gray, In his Official Capacity as Mayor of the District of Columbia, Defendant: Chad Alan Naso, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL, DISTRICT OF COLUMBIA, Washington, DC USA.
COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.
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 consideration of the pleadings, 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  Motion to Dismiss or, in the alternative, for Summary Judgment and dismisses this action in its entirety.
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, 27 F.Supp.2d 142, 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 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. , 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.
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 Form
(" 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. , 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. , 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. 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. , 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, 348 U.S.App.D.C. 77 (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).
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 ...