IPR works with a number of individuals as well as local, regional, and national organizations concerned about the effects of environmental pollution on their communities and about various threats to important local and regional natural resources. On their behalf, IPR has pursued litigation and administrative initiatives against government agencies and organizations designed to improve the quality of the area’s environment.
In Spring 2008, IPR prepared amicus briefs on behalf of the National Association of Clean Air Agencies (“NACAA”) and the Monterey Bay Aquarium. IPR intended to file the briefs in the U.S. Ninth Circuit Court of Appeals in support of the State of California’s petition to review the U.S. Environmental Protection Agency’s (“EPA’s”) denial of California’s request for a Clean Air Act waiver to enforce greenhouse gas standards for cars and light-duty trucks. Under the Clean Air Act, California is the only state that may regulate mobile source emissions, and the remaining states may enforce either California’s or federal standards. EPA’s decision left cars and trucks unregulated for the emission of greenhouse gases because no federal standards exist. IPR prepared a brief on behalf of the Monterey Bay Aquarium to discuss greenhouse gas and climate change impacts on California’s coast and ocean. The brief prepared for NACAA addresses the interests of states and localities in having the ability to abate greenhouse gas emissions in light of the public health and welfare. The Ninth Circuit transferred the case to the D.C. Circuit, and an IPR student worked with counsel for additional amicus parties, including climate scientists, Jewish organizations, and government interests, to prepare and file joint briefs with our clients in November 2008.
Since February 2009, the D.C. Circuit has held the case in abeyance while EPA reconsiders its decision not to grant California a waiver. IPR submitted comments to EPA on behalf of the Monterey Bay Aquarium, urging EPA to grant the waiver and allow California to enforce its mobile source greenhouse gas regulations . On June 30, 2009, EPA granted the waiver.
1. Mattaponi Tribe – King William Reservoir
Since 1996, IPR has represented the Mattaponi Indian Tribe in its opposition to the construction of a large-scale reservoir located near its reservation in southeastern Virginia. The project would threaten more than two hundred and fifty Indian archeological sites, many of which are eligible for inclusion in the National Register of Historic Places, and would result in the largest destruction of wetlands in Virginia since the passage of the Clean Water Act. The Tribe’s reservation is on the banks of the Mattaponi River, three miles downstream from where water will be withdrawn to fill the proposed reservoir. The Mattaponi people subsist on an annual shad harvest from the Mattaponi River, and the proposed intake pipe for the reservoir is located in the middle of prime shad spawning grounds. The Tribe is deeply concerned that the water withdrawal would impair its ability to continue its culturally and economically vital shad fishing.
The City of Newport News (“City”) had obtained all state and federal permits necessary for the project. For many years, the Tribe challenged one of the state permits in the Virginia state courts. IPR students drafted complaints, prepared motion briefs, worked on discovery, prepared for trial, and helped prepare IPR staff attorneys for oral arguments. Ultimately, IPR achieved a favorable settlement for the Tribe that preserved the right to continue its lawsuit in federal court challenging the Clean Water Act permit, to speak publicly about its opposition to the project, to participate in administrative hearings related to the project, and to pursue litigation in state court if the reservoir project changes significantly from the current proposal.
In 2006, the Tribe brought claims against the Environmental Protection Agency (“EPA”) and the Army Corps of Engineers (“the Corps”) in the United States District Court for the District of Columbia, challenging the issuance of the King William Reservoir’s federal Clean Water Act permit. Along with three environmental groups, the Tribe alleged that the federal permit violates the Clean Water Act and the National Environmental Policy Act. Although the Corps produced a large administrative record relating to its decision to grant the permit, EPA refused to produce any documents to support its decision not to exercise its authority to “veto” the permit. In August 2007, IPR filed a motion on behalf of the Tribe to compel EPA’s production of a record. An IPR student drafted the reply brief. The magistrate judge granted the motion and ordered EPA to produce an administrative record.
From September 2007 to May 2008, three IPR students drafted the majority of a summary judgment motion on behalf of the Tribe. In Fall 2008, two IPR students helped draft a brief in opposition to the defendants’ motion for summary judgment, and a reply brief. The Court did not hold oral argument. On March 31, 2009, the Court granted in part the Tribe’s and plaintiffs’ motions for summary judgment, holding that the Corps violated the Clean Water Act by granting the permit, and that EPA violated the Clean Water Act by considering the wrong factors in deciding not to withdraw the permit. However, the Court also held that the Corps did not violate the National Environmental Policy Act. The Corps and EPA appealed the decision, and the Tribe and plaintiffs cross-appealed, but the appeals were dismissed by joint motion on July 1, 2009. IPR has filed a motion for attorneys’ fees and costs in the District Court while simultaneously attempting to negotiate the fee issue with the government. An IPR student will help with briefing and negotiations this fall.
1. Digital Billboards
On behalf of Scenic America, IPR researched the viability of a suit challenging a guidance memo issued by the Federal Highway Administration in September 2007. The guidance memo liberally interpreted federal-state agreements under the Highway Beautification Act that prohibit placing billboards with flashing, blinking, or moving lights near federal highways. The new interpretation allows digital billboards, which are bright LED displays with advertisements that change approximately every six seconds. The practical effect of the guidance memo was to eliminate federal oversight of the placement of digital billboards near federally funded highways. Scenic America believes billboards, and particularly digital billboards, undermine the aesthetic beauty of the nation’s highways, distract drivers, and reduce highway safety. After thorough research, IPR and Scenic America concluded that litigation was an unwieldy tool for addressing their concerns. The matter is now closed .
2. Fort Dupont Park Transfer
In spring 2009, IPR students filed a complaint on behalf of the Maryland Native Plant Society (MNPS), the Virginia Native Plant Society, and David Culp, a concerned citizen who walks in Fort Dupont weekly. The complaint challenges the National Park Service’s Finding of No Significant Impact for a proposed transfer of jurisdiction over fifteen acres of Fort Dupont Park. The jurisdictional transfer would allow the expansion of an ice rink and the development of a baseball academy immediately adjacent to a globally rare forest community known as a terrace gravel forest. Construction of the recreational facilities would expose the forest to invasive species and degradation.
IPR began working with Maryland Native Plant Society in spring 2008 to challenge the proposed transfer. In addition to information requests to federal and District agencies regarding the proposed transfer, IPR students also submitted scoping comments on the National Park Service’s initial plan and substantive comments on the National Park Service’s Environmental Assessment on behalf of MNPS, the Audubon Naturalist Society, and the D.C. Chapter of the Sierra Club. The comments expressed concern about the ecological consequences of a recreational development immediately adjacent to the forest. Following the National Park Service’s conclusion that the transfer would not have a significant effect on the environment, IPR, MNPS, David Culp, and the Sierra Club met with D.C. officials and members of the National Capital Planning Commission expressing concern about the transfer, and testified at a hearing before the National Capital Planning Commission opposing the transfer. When it became apparent that these persuasive measures were not working, MNPS, the Virginia Native Plant Society, and David Culp decided to legally challenge the National Park Service’s environmental assessment and finding of no significant impact. The government’s answer is due on August 24.
3. Lemon et al. v. Green
In the fall of 2008, IPR prepared and filed summary judgment briefs for two individual plaintiffs who had brought suit in the U.S. District Court for the District of Columbia against the Secretary of the Army. The lawsuit concerned the proposed redevelopment of Fort Ritchie, a former Army base in northern Maryland that contains numerous historic properties and expansive green spaces. In preparation for transferring the Fort to the local redevelopment authority, the Army had analyzed in 1997 the environmental impacts of the authority’s redevelopment plan. However, the developer chosen to ultimately receive the property created a new redevelopment plan in 2004 that significantly increased the amount of land developed, including construction on the Fort’s historic parade grounds.
The Army refused plaintiffs’ request to reanalyze the environmental impacts from the amended redevelopment plan. Plaintiffs brought suit, claiming that the Army violated the National Environmental Policy Act by failing to analyze new significant environmental impacts. IPR argued in the summary judgment briefing that the Army must analyze impacts in connection with the greater development intensity, increased impervious surfaces, construction on the historic parade grounds, transfer of the water system to a private entity, and the county’s recent failure to meet national air quality standards for particulate matter. An IPR student helped draft the briefs. The court has not yet issued a ruling.
4. McMillan Park Redevelopment
In spring of 2009, IPR began assisting the McMillan Park Committee (“MPC”) with its efforts to protect the historic resources and open green space of McMillan Park. The District of Columbia owns the McMillan Park sand filtration site, which is 26 acres of open space fenced off from public use and contains unique brick tower-like structures built in 1906 for the purpose of water filtration. The District plans to transfer the property to a private developer who proposes to remove most of the historic structures and construct apartments, condominiums, and retail facilities, leaving approximately 3–4 acres of contiguous open space for public use. This proposal differs greatly from the District’s earlier proposed redevelopment, which included at least 50% open space, a community center, and other community amenities. Many community members and groups in addition to MPC are concerned about the intensity of the proposed development, lack of usable public space, and failure to protect more of the unique historic resources in McMillan Park.
During the spring semester, a clinic student submitted Freedom of Information Act (“FOIA”) requests to gather information about the new redevelopment proposal and its environmental and historic resource impacts. The student also sent a letter to the mayor of D.C., urging him to conduct an environmental analysis before transferring the property to the developer . IPR has received adequate responses from almost all FOIA requests, but still waits for production of emails from the Deputy Mayor’s Office. The property transfer and development proposal are currently stalled because public financing is uncertain.
5. Nat’l Trust for Historic Preservation v. U.S. Dept. of Veterans Affairs, et al.
In late spring of 2009, IPR began representing the National Trust for Historic Preservation in a second legal matter involving redevelopment and the destruction of historic properties (the first involves the proposed redevelopment of St. Elizabeths Hospital, as described in section 8 below). The U.S. Department of Veterans Affairs (“VA”) plans to construct a new hospital in a historic district of New Orleans. Immediately adjacent, and in the same historic district, Louisiana intends to build a new hospital using in part funds from the Federal Emergency Management Agency (“FEMA”). Construction of the hospitals would require the destruction of more than 160 historic houses and buildings, and the relocation of over 600 residents. The VA and FEMA prepared a joint environmental assessment that analyzes the first phase of the project—selecting the proposed sites and demolishing the existing buildings. Both agencies concluded that the first phase would cause no significant environmental impacts. The agencies plan to analyze impacts from construction and operation in a later environmental review document .
IPR filed a lawsuit on the National Trust’s behalf in the U.S. District Court in the District of Columbia, challenging the VA’s and FEMA’s decision to segment the environmental analysis into separate phases rather than preparing a single, comprehensive environmental analysis of the entire project, failure to consider indirect and cumulative impacts from construction and operation of the hospitals, and failure to recognize the significant impacts on socioeconomic and historic resources.. IPR students assisted in drafting the complaint. IPR also opposed a motion by the agencies to transfer the case to Louisiana, and motions by the City of New Orleans and a Louisiana agency to intervene in the case. On July 27, the court granted the agencies’ motion to transfer the case to the Eastern District of Louisiana .
6. Rock Creek Park Wireless Telecommunication Plan
In Spring 2008, an IPR student and fellow submitted comments on the National Park Service’s proposed Wireless Telecommunication Plan for Rock Creek Park on behalf of Audubon Naturalist Society of the Central-Atlantic States, Inc., Audubon Society of the District of Columbia, Crestwood Neighborhood League, DC Environmental Network, Friends of the Earth, Friends of Rock Creek Environment, Maryland Native Plant Society, Maryland Ornithological Society, Montgomery Bird Club, National Parks Conservation Association, and the Sierra Club (D.C. Chapter). The comments identified that the environmental assessment relied on by the National Park Service to authorize wireless telecommunications facilities in Rock Creek Park incorporated a flawed legal analysis, failed to demonstrate a need for additional facilities in the Park, improperly dismissed or failed to consider other reasonable alternatives, and failed to consider a variety of impacts from the proposed plan, all contrary to the requirements of the National Environmental Policy Act. In January, the National Park Service issued a Finding of No Significant Impact that selected an improved plan for managing cell towers in the park. The plan requires a site-specific NEPA analysis before siting any tower, and only allows forty-foot monopole towers, which are much safer for birds and can be installed without much ground disturbance. IPR notified its clients, who were pleased with the result and plan to monitor applications for siting cell towers to make sure that they are not located in sensitive areas. IPR’s work on this project is finished.
7. Second Century Commission
The Second Century Commission, made up of several national leaders, experts and thinkers from a broad range of backgrounds, was convened to gather comments on the vision of the National Park Service as it nears its Centennial celebration. Funded by a grant from the National Park Conservation Association, the Second Century Commission held one of several public meetings soliciting public input in Washington D.C. An IPR student prepared written comments and testified at the public meeting regarding the importance of urban parks to the National Park Service’s mission. IPR does not anticipate any further work on this project
8. St. Elizabeths Hospital
In spring of 2009, IPR began representing the National Trust for Historic Preservation (“National Trust”) in its opposition to the proposed consolidation of the Department of Homeland Security (“DHS”) at the historic St. Elizabeths Hospital in Washington, D.C. St. Elizabeths, a National Historic Landmark (“NHL”), was founded in 1852 and was previously the nation’s premiere public health facility. Consolidation of DHS headquarters at St. Elizabeths would require destruction of numerous historic buildings and significant new construction that would likely cause the property to be delisted as a NHL. DHS would also construct a massive perimeter wall that would further destroy the historic quality of St. Elizabeths and restrict public access to the site.
IPR researched potential legal claims that the National Trust could bring, if DHS goes forward with the proposed consolidation and does not adequately mitigate the impacts. IPR students attended meetings of the consulting parties, which included the National Trust, DHS, the National Park Service, the General Services Administration, architects, and other historic preservation agencies and organizations. The Federal Highway Administration will soon release its final decision regarding the access road for the development, which should include further environmental analysis.
1. Poplar Point
In the spring of 2008, IPR began working with a coalition of environmental groups on issues related to the proposed development at Poplar Point. Poplar Point is a 110-acre federal parkland located on the east bank of the Anacostia River, bounded by I-295 and the Frederick Douglass Memorial Bridge. Although the National Park Service technically manages Poplar Point as part of Anacostia National Park, the site has been neglected for decades.
In late 2006, Congress authorized the transfer of ownership of Poplar Point from the federal government to the District of Columbia. The legislation authorizing transfer requires the Department of Interior to certify a land use plan for the site that preserves at least 70 acres for “park purposes” prior to transfer. In June 2008, the National Park Service, acting as a joint lead agency with the District of Columbia, began conducting public meetings in order to develop a land use plan through the National Environmental Policy Act (NEPA) process. IPR students attended each of the public community meetings and helped other interested public interest groups, including the Anacostia Riverkeeper, the DC Chapter of the Sierra Club, Friends of the Earth, and Casey Trees, prepare talking points for the public meetings. IPR students also submitted comments to the National Park Service on behalf of the Anacostia Riverkeeper and the D.C. Sierra Club expressing concern about protecting important ecological features of the land and advocating for a natural design for that part of the site reserved for “park purposes.” In January, the master developer for the development project, Clark Realty, withdrew from the project. Since November, the community meetings for the NEPA process have been suspended.
Poplar Point is also highly contaminated with arsenic, polyaromatic hydrocarbons, polychlorinated biphenyls, pesticides, metals, and other pollutants from prior activities of the United States Army Corps of Engineers, Department of the Navy, Architect of the Capitol, National Park Service, and the District of Columbia. Given the present threats to human health and the environment from the contamination of the site, an IPR student drafted a notice of intent to sue those federal and district entities under the Resource Conservation and Recovery Act (RCRA) on behalf of Anacostia Riverkeeper, Earth Conservation Corps, DC Acorn, Friends of the Earth, Potomac Riverkeeper, and the Sierra Club (D.C. Chapter). The notice of intent, which was sent out in June 2008, informed the federal and district entities that the coalition would sue after ninety days, if they had not abated the imminent and substantial endangerment to human health and the environment presented by the contamination on the site by that time.
In response to the letter, the District of Columbia and the National Park Service notified IPR that it had entered into a settlement agreement under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Under the settlement, the District agreed to conduct a remedial investigation and feasibility study of the entire site . On behalf of the coalition, IPR students attended a meeting with the federal government to discuss the extent of the settlement agreement in more detail. In spring of 2009, on behalf of the coalition, IPR students submitted information requests to the District and the National Park Service to evaluate whether the parties were diligently pursuing remediation. The information received indicated that the government is proceeding with plans for remediation, making litigation unnecessary at this point. IPR informed the clients of its findings and recommended that they continue to monitor the site should development activities start up again. IPR’s work on this project is now completed.
2. Potomac Riverkeeper – Gun Club
Since the summer of 2003, IPR represented Potomac Riverkeeper, Inc. (“PRK”) in a dispute surrounding the operation of a skeet and trap shooting facility operated by the National Capital Skeet and Trap Club (the “Club”) and located in Seneca Creek State Park, near a tributary of the Potomac River. Lead shot from the facility collected for more than fifty years in the tributary, in an adjacent wetland, and in the floodplain. IPR’s actions on behalf of PRK resulted in the facility ceasing operations, but the lead contamination still remained. From July 2004 to January 2005, IPR negotiated with Maryland Department of Natural Resources (“MDNR”) and the Club regarding appropriate remediation measures. Because a satisfactory agreement could not be reached, in February 2005 IPR commenced a civil action against the Club and MDNR’s Executive Secretary in the U.S. District Court for the District of Maryland, alleging violations of the Clean Water Act and the Resource Conservation and Recovery Act (“RCRA”).
Following cross-motions for summary judgment and the survival of PRK’s RCRA claim, the parties agreed to a settlement in principle in September 2006. MDNR agreed to remediate the site to levels of 5 mg/L or less lead when tested using the Toxicity Characteristic Leaching Procedure. (5 mg/L is the EPA standard for what constitutes non-hazardous waste.) In April 2007, PRK and MDNR disagreed about the size and location of “the site” to be remediated. PRK believed that MDNR should test to determine the extent of contamination, but MDNR agreed instead to remediate 10 acres, an increase from its originally proposed 7.6 acres. MDNR likely spent over $1 million to remediate, which was completed in June 2008. In the fall of 2008, IPR negotiated with MDNR to require future groundwater and remediation monitoring, and further soil testing outside the remediation boundaries, which will ensure that the remediation included all lead contamination of concerns and remains stabilized. MDNR also agreed to pay attorney fees. An IPR student assisted in preparing for the negotiations, and attended the settlement conference before the Magistrate Judge. This past spring, IPR received its attorneys fees and costs. The case is now closed, although IPR will continue to review MDNR’s monitoring and testing to ensure they comply with the settlement agreement.
