DC Federation of Civic Associations, Inc. v. Volpe

• Decision Date: 06 April 1970
• Docket Number: No. 23870.,23870.
• Parties: D. C. FEDERATION OF CIVIC ASSOCIATIONS, INC., et al., Appellants, v. John A. VOLPE et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

434 F.2d 436 (1970)

D. C. FEDERATION OF CIVIC ASSOCIATIONS, INC., et al., Appellants, v. John A. VOLPE et al.

No. 23870.

United States Court of Appeals, District of Columbia Circuit.

Argued February 25, 1970.

Decided April 6, 1970.

Mr. Roberts B. Owen, Washington, D. C., with whom Mr. Gerald P. Norton, Washington, D. C., was on the brief, for appellants.

Mr. Thomas L. McKevitt, Attorney, Department of Justice, with whom Messrs. Thomas A. Flannery, U. S. Atty., Joseph M. Hannon, Asst. U. S. Atty., and Edmund B. Clark, Attorney, Department of Justice, were on the brief, for federal appellees.

Mr. John R. Hess, Asst. Corporation Counsel for the District of Columbia, with whom Messrs. Charles T. Duncan, Corporation Counsel, Hubert B. Pair, Principal Asst. Corporation Counsel, and Richard W. Barton, Asst. Corporation Counsel, were on the brief, for District of Columbia appellees.

Messrs. Bruce L. Montgomery and Richard J. Wertheimer, Washington, D. C., filed a statement on behalf of Sierra Club, et al., as amici curiae.

Before BAZELON, Chief Judge, and WRIGHT and MacKINNON, Circuit Judges.

J. SKELLY WRIGHT, Circuit Judge:

This suit concerns the interpretation of Section 23 of the Federal-Aid Highway Act of 1968.¹ In that section Congress directed the District of Columbia government and the Secretary of Transportation to construct certain of the remaining portions of the Interstate Highway System in the District. Among the projects mentioned in the Act was the Three Sisters Bridge, a proposed span across the Potomac River upstream from Key Bridge crossing from Spout Run in Virginia to the Georgetown section of Washington.

The Act became law with the signature of the President on August 23, 1968. In September of 1969 the District let the first contracts for building the Three Sisters Bridge. Taxpayers and civic associations in the District brought this suit in October of 1969 for a declaratory judgment and for injunctive relief. Appellants alleged that the Secretary of Transportation and the District government were building the Bridge in violation of several provisions of Title 23 of the United States Code.

After an expedited hearing the District Court refused to grant the injunction and granted summary judgment for appellees. The court concluded that appellants' allegations of violations of Title 23 would not be considered because "Congress intended by enacting Section 23 that the District of Columbia commence construction on the Bridge project as soon as possible, and that no further planning or hearing requirements of Title 23 need be complied with."² Because we do not find that Congress intended to deny the residents of the District of Columbia the protections accorded all United States citizens by Title 23, we reverse the decision of the District Court and remand the cause for hearings to determine whether there has been compliance with Title 23 in this case.

I

Section 23 of the Federal-Aid Highway Act of 1968 provides as follows:

DISTRICT OF COLUMBIA

Sec. 23. (a) Notwithstanding any other provision of law, or any court decision or administrative action to the contrary, the Secretary of Transportation and the government of the District of Columbia shall, in addition to those routes already under construction, construct all routes on the Interstate System within the District of Columbia as set forth in the document entitled "1968 Estimate of the Cost of Completion of the National System of Interstate and Defense Highways in the District of Columbia" submitted to Congress by the Secretary of Transportation with, and as a part of, "The 1968 Interstate System Cost Estimate" printed as House Document Numbered 199, Ninetieth Congress. Such construction shall be undertaken as soon as possible after the date of enactment of this Act, except as otherwise provided in this section, and shall be carried out in accordance with all applicable provisions of title 23 of the United States Code.

(b) Not later than 30 days after the date of enactment of this section the government of the District of Columbia shall commence work on the following projects:

(1) Three Sisters Bridge, I-266 (Section B1 to B2).

(2) Potomac River Freeway, I-266 (Section B2 to B4).

(3) Center Leg of the Inner Loop, I-95 (Section A6 to C4), terminating at New York Avenue.

(4) East Leg of the Inner Loop, I-295 (Section C1 to C4), terminating at Bladensburg Road.³

Appellees argue strenuously that Section 23 was intended to eliminate the necessity for compliance with the "pre-construction" provisions of Title 23 of the United States Code in building the Three Sisters Bridge. Specifically, appellees urge that, despite the explicit statement in Section 23 that "all applicable provisions" of Title 23 are to govern the project, the following sections of Title 23, while applicable to similar projects throughout the country, are inapplicable to the Three Sisters Bridge project⁴: (1) 23 U.S.C. § 128(a) (Supp. IV 1965-1968), which requires any state⁵ building a federally financed road to hold public hearings as to design and location of any proposed highway or bridge, and to consider the "economic and social effects of such a location, its impact on the environment, and its consistency with the goals and objectives of such urban planning as has been promulgated by the community";⁶ (2) 23 U.S.C. § 134 (1964), which requires the Secretary of Transportation to withhold approval of new highway projects unless and until he has made an explicit finding that "such projects are based on a continuing comprehensive transportation planning process carried on cooperatively by States and local communities in conformance with the objectives stated in this section"; and (3) 23 U.S.C. § 138 (Supp. IV 1965-1968), which requires the Secretary of Transportation to withhold approval of projects involving the use of park land "unless there is no feasible and prudent alternative to the use of such land, and * * * such program includes all possible planning to minimize harm to such park * * * resulting from such use."

If we were to accept appellees' interpretation of Section 23, we would be confronted with difficulties, possibly of constitutional magnitude. The provisions listed above are the essential safeguards which Congress has established, on a nationwide basis, to ensure that massive freeway projects are not constructed unless there has been a good faith effort on the part of the state and local planners to take community needs and resources into consideration. Congress has directed the planners to design projects consistent with growth and development patterns, to refrain from any unnecessary destruction of valuable state or local park land, and, most importantly, to accord area residents a full and fair hearing. The Secretary of Transportation is charged with overseeing the planning and may not approve road projects, thus allowing them to be built with federal funds, until he finds that all these considerations have been properly taken into account.

The net effect of Section 23, construed as appellees insist it must be, is to divide citizens of the United States affected by road projects into two classes. One small group of citizens, the residents of the District of Columbia who will be affected by the Three Sisters Bridge, is deprived of these important rights to participate in planning the future of the community. The other class, consisting of all residents of the 50 states, still retains these federally guaranteed rights to influence all federally assisted road building. On its face, therefore, appellees' interpretation of Section 23 would result in discrimination between the District residents affected by the Bridge and all other residents of the United States affected by highway projects in their localities.

The finding of such a discrimination, however, must be only the starting point of our inquiry. In the constitutional sense, many discriminations are simply benign. The question remains whether this discrimination is based on an invidious classification between groups of citizens which rises to the level of a violation of the equal protection clause of the Constitution.⁷ We find that appellees' interpretation of Section 23 would endanger its constitutionality. We reject that interpretation to save the statute.

We start our analysis by explicitly recognizing, as the Supreme Court has announced on many occasions, that it is not every legislative discrimination between similarly situated groups which is violative of equal protection guarantees.⁸ The legislative branches of government, state and federal, must be given great freedom in choosing how to overcome a designated evil. The latitude given the legislature in enacting schemes of economic regulation has been especially broad.⁹

But while eschewing a close review of economic regulation, the Court has explicitly stated that it will apply "strict scrutiny,"¹⁰ a much more searching standard of review, when "individual and personal"¹¹ or "fundamental"¹² rights are involved. As the Court recently explained, in economic regulation cases "the Court has merely asked whether there is any rational foundation for the discrimination, and has deferred to the wisdom of the state legislatures."¹³ When fundamental and personal rights are at stake, however, the statute can only be sustained by meeting "the very heavy burden of justification."¹⁴ In at least some of these cases the discrimination "must be shown to be necessary to the accomplishment of some permissible state objective"¹⁵ (emphasis added) if the statute is to pass constitutional muster.¹⁶ We think that the interpretation of Section 23 which appellees urge would unnecessarily deny District residents important personal rights granted by Title 23 to citizens elsewhere in the United States.

All provisions of Title 23 discussed above were enacted primarily for the benefit of the local residents whose homes and lives may be affected by a national highway...