FRIENDS OF the CAPITAL CRESCENT TRAIL, et al., Appellees/Cross-Appellants v. FEDERAL TRANSIT ADMINISTRATION, et al., Appellants/Cross-Appellees State of Maryland, Intervenor-Appellant/Cross-Appellee
No. 17-5132 Consolidated with 17-5161, 17-5174, 17-5175
United States Court of Appeals, District of Columbia Circuit.
Argued November 1, 2017 Decided December 19, 2017
877 F.3d 1051
***
The judgment of the district court is Affirmed.
Nick Goldstein, James M. Auslander, and Gus B. Bauman, Washington, DC, were on the brief for amicus curiae American Road & Transportation Builders Association in support of appellants/cross-appellees.
Albert M. Ferlo, Washington, DC, argued the cause for intervenor-appellant/cross-appellee State of Maryland. With him on the briefs were Eric D. Miller, Seattle, WA, William G. Malley, Washington, DC, Brian E. Frosh, Attorney General, Office of the Attorney General for the State of Maryland, and Julie T. Sweeney, Assistant Attorney General. Linda DeVuono, Assistant Attorney General, entered an appearance.
Jared M. McCarthy and Milton E. McIver, Landover, MD, were on the brief for amicus curiae Prince George‘s County, Maryland.
John P. Markovs was on the brief for amicus curiae Montgomery County, Maryland.
Eric R. Glitzenstein, Washington, DC, argued the cause for appellees/cross-appellants Friends of the Capital Crescent Trail, et al. With him on the briefs was David W. Brown. William S. Eubanks, II, Black Mountain, NC, entered an appearance.
Before: GARLAND, Chief Judge, and ROGERS and SRINIVASAN, Circuit Judges.
ROGERS, Circuit Judge:
This case concerns multiple challenges under the National Environmental Policy Act to Maryland‘s proposed “Purple Line” light rail project. Two orders of the district court are principally at issue. In the first order, the district court directed the Federal Transit Administration (“FTA“) to prepare a supplemental Environmental Impact Statement (“SEIS“) tо analyze the effects of Metrorail‘s recent safety and ridership problems on the Purple Line‘s environmental impact and purpose; it also vacated FTA‘s Record of Decision pending completion of the SEIS. In the second order, the district court rejected other challenges to FTA‘s final Environmental Impact Statement (“FEIS“). For the following reasons, we reverse the order di-
I.
For over two decades, beginning as early as 1990, the Maryland Transit Administration (“Maryland“) has developed plans to construct the “Purple Line“—a 16-mile public transit project that would connect communities in Maryland‘s Montgomery and Princе George‘s counties with each other and with other regional transit systems, including the Washington Metropolitan Area Transit Authority‘s Metrorail system. In 2003, Maryland applied for funding under the “New Starts” program administered by FTA, see
A.
Between 2003 and 2008, FTA and Maryland jointly prepared a draft EIS (“DEIS“). See
After the close of the comment period, Maryland publicly identified in August 2009 a modified version of the medium-investment light rail option as its “locally preferred alternative” for the Purple Line. See
Upon further study by Maryland and FTA, and public involvement, FTA issued the Purple Line‘s final EIS (“FEIS“) in August 2013. The FEIS sets forth the project‘s three purposes:
- Provide faster, more direct, and more reliable east-west transit service connecting the major activity centers in [Montgomery and Prince George‘s counties, including] Bethesda, Silver Spring, Takoma/Langley Park, College Park, and New Carrollton,
- Provide better connections to Metrorail services located in the corridor, and
- Improve connectivity to the communities in the corridor located between the Metrorail lines.
FEIS, ch. 1, at 1 (Aug. 28, 2013). With reference to these purposes, the FEIS compares in detail Maryland‘s preferred light rail alternative and the “no-build” alternative. It includes chapters on adverse environmental effects resulting from construction and operation, indirect effects, impacts on nearby historic properties, mitigation and minimization measures, FTA‘s responses to public comments, and technical reports on noise impacts, travel forecasts, and other issues. In addition, the FEIS compares the alternatives’ transportation-related effects, including future ridership forecasts and impacts on low-income and minority communities. It also incorporates by reference the earlier analysis of alternatives contained in the DEIS.
Based on the FEIS, DEIS, and other supporting technical and design documents, FTA issued the Purple Line‘s Record of Decision (“ROD“) in March 2014. 79 Fed. Reg. 18,113 (Mar. 31, 2014). It certified the project‘s compliance with NEPA, see
B.
In August 2014, Friends of the Capital Crescent Trail and two individual environmentalists (collectively, “the Friends“) filed suit against FTA in the federal district court here, alleging that in developing the FEIS, FTA had violated NEPA and other environmental statutes. The State of Maryland intervened in support of FTA. In October 2015, while the lawsuit was pending, the Friends wrote to FTA about purported new information on Metrorail‘s safety and ridership problems. Their letter stated that a “series of incidents,” including the death of a passenger in January 2015, “have raised questions about [Metrorail] passenger safety.” Friends Letter to FTA, at 2-3 (Oct. 9, 2015) (“Friends 2015 Letter“). It also described the decline in Metrorail ridership since 2009 “due to interruptions, delays, accidents[,] and the adoption of other means and patterns of travel.” Id. at 3. Because the Purple Line “is inextricably linked to and dependent upon” Metrorail, the Friends concluded that the problems experienced by Metrorail undermined the ridership projections in the FEIS and, therefore, necessitated preparation of a SEIS. Id. at 3. Attached to the Friends’ letter were three declarations questioning the assumptions and methodology underlying the ridership projections in the FEIS. Id. at 5. Maryland‘s response was that becаuse the Purple Line and Metrorail are separate legal entities, “the financial or other issues currently being experienced by [Metrorail] do not involve the Purple Line, and they have no relationship to the environmental impacts of the Purple Line.” Maryland Letter to FTA, at 3 (Dec. 7, 2015) (“Md. 2015 Letter“). Maryland characterized the declarations as simply “late-filed comment[s] on the analysis in the [F]EIS,” not new information warranting preparation of a SEIS. Id. at 9-10. FTA agreed and declined to prepare a SEIS to address the ridership issue. FTA Letter to Maryland, at 4 (Jan. 7, 2016) (“FTA 2016 Letter“). The Friends then filed an additional complaint under the Administrative Procedure Act (“APA“),
The district court granted partial summary judgment to the Friends. Friends of the Capital Crescent Trail v. FTA, 200 F.Supp.3d 248 (D.D.C. 2016). It concluded that Metrоrail‘s ridership decline and safety problems “directly undermined the [ridership] rationale” upon which the Purple Line was justified, and that because the FEIS had estimated approximately a quarter of expected Purple Line riders would transfer to or from Metrorail, a potentially large change to that forecast requires reevaluation of the Purple Line project alternatives. Id. at 252-53. The district court ordered FTA to prepare a SEIS addressing the ridership issue and vacated the ROD pending its completion. Id. at 254. Subsequently, in responding to FTA‘s motion for reconsideration, the district court permitted FTA to examine on remand the “significance of [Metrorail‘s] ridership and safety issues [on the Purple Line] and determine what level of addi-
In December 2016, FTA filed a memorandum with the district court based on Maryland‘s evaluation of five hypothetical scenarios in which Metrorail ridership declines in varying degrees to the year 2040. FTA Scenarios Memorandum (Dec. 13, 2016) (“FTA Scenarios Report“); see Maryland Metrorail Ridership Assessment (Nov. 3, 2016) (“Md. Ridership Assessment“). In the most extreme scenario, Metrorail ceases to function, resulting in zero transfers to and from the Purple Line. FTA Scenarios Report, at 4. FTA determined that under any of the five scenarios light rail would meet the Purple Line‘s purposes as well as or better than any other option. Id. at 6-7. In addition, FTA emphasized, no matter the level of Metrorail‘s ridership, the Purple Line‘s environmental impact during construction and operation would not worsen. Id. at 4. Therefore, FTA again concluded that preparation of a SEIS was not required. Id. at 7.
The district court disagreed. Friends of the Capital Crescent Trail v. FTA, 253 F.Supp.3d 296 (D.D.C. 2017). First, because FTA did not ascertain which of the five Metrorail ridership scenarios was most likely to occur, it found that FTA had no basis to conclude that the Purple Line would fulfill the stated purposes in all scenarios. Id. at 301. Second, it found that FTA failed to respond specifically and meaningfully to the criticisms raised by the Friends’ declarants. Id. at 301-02. The district court therefore ordered the preparation of a SEIS. Id. at 303. Its vacatur of the ROD pending completion of the SEIS remained intact. FTA and Maryland appeal.
II.
NEPA itself does not state when a SEIS must be prepared, but the regulations promulgated by the Council on Environmental Quality (“CEQ“) do. As explained by the Supreme Court, “[t]he CEQ regulations, which are entitled to substantial deference, impose a duty on all federal agencies to prepare supplements to either draft or final EIS‘s if there ‘are significant new cirсumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.‘” Marsh, 490 U.S. at 372 (quoting
Our review of the district court‘s grant of summary judgment is de novo. Defenders of Wildlife v. Zinke, 849 F.3d 1077, 1082 (D.C. Cir. 2017) (citation omitted). Review of FTA‘s decision not to prepare a SEIS is “searching and careful,” but “narrow.” Marsh, 490 U.S. at 375-76;
Consistent with this standard of review, central to our resolution of the challenges to the order requiring the preparation of a SEIS is FTA‘s Scenarios Report, which assesses the impact of five hypothetical scenarios of future Metrorail ridership decline on the Purple Line‘s ridership. In the most optimistic scenario of “near-term rebound,” Metrorail ridership declines through 2017, but after completion of safety and reliability improvements, ridership returns to its prior growth path from 2018 through 2040, the study‘s cutoff date. FTA Scenarios Report, at 3. In the second scenario, Metrorail ridership increases from 2018 through 2040, but at a slower rate. Id. In the third scenario, Metrorail ridership stagnates between 2018 and 2040. Id. In the fourth scenario, Metrorail ridership declines through 2040 at the same rate it has for the past decade. Id. In the fifth scenario, Metrorail ceases to exist, resulting in no transfers to or from the Purple Line. Id. at 4.
With respect to the transportation-related impacts of Metrorail decline on the Purple Line, FTA acknowledged that in the fifth scenario the light rail option would no longer satisfy one of the Purple Line‘s three purposes, namely, improving connectivity to Metrorail. Id. at 7. Nonetheless, FTA determined:
This would not affect the choice between alternatives, however, because no alternative would be capable of meeting that [purpose], as it relies on the existence of the Metrorail system. Moreover, the corresponding increases in roadway congestion would amplify the extent to which the [light rail] project meets the [other, non-Metrorail-related purposеs of the Purple Line], making [light rail] still the best able to meet [the Purple Line‘s] overall Purpose and Need, even under this highly unlikely scenario.
Id.
Separately, FTA determined with respect to environmental impacts that none
This determination would appear to be precisely the type of judgment “implicat[ing] substantial agency expertise” to which the court owes deference. See Marsh, 490 U.S. at 376-77. The Friends contend, however, that FTA erred as a matter of law because it should have applied the CEQ SEIS regulation rather than FTA‘s own regulation, noting a textual difference between them. Compare
The Friends have overread the effect of the textual difference between the two regulations. As interpreted by the Supreme Court, NEPA requires the preparation of a SEIS where new information “will affect the quality of the human environment in a significant manner or to a significant extent not already considered.” Marsh, 490 U.S. at 373-74 (emphasis added). Over the course of a long-running project, new information will arise that affects, in some way, the analysis contained in a prior FEIS. NEPA does not require agencies to needlessly repeat their environmental impact analyses every time such information comes to light. Rather, a SEIS must be prepared only where new information “provides a seriously different picture of the environmental landscape.” Nat‘l Comm. for the New River v. FERC, 373 F.3d 1323, 1330 (D.C. Cir. 2004) (emphasis added).
So understood, regardless of whether the CEQ or FTA regulation applies, FTA and Maryland reasonably explained why the Friends’ Metrorail information does not require preparation of a SEIS. Not only does that information not adversely affect the Purple Line‘s environmental impact in an absolute sense—the construction and operational footprint would remain the same—neither does it have
Furthermore, the Metrorail information offered no reason for Maryland to reconsider the transportation reasons for selecting its preferred alternative. Even if Metrorail ceased to exist—an extreme and highly unlikely scenario given its centrality to transportation in the greater Washington metropolitan area—light rail would still provide faster (and higher-capacity) east-west connections between major Maryland activity centers in Montgomery and Prince George‘s counties than would other alternatives, like bus rapid transit. See Md. Ridership Assessment, at 32. Light rail also would promоte new economic opportunities in the underserved low-income and minority communities located between those centers, and provide better connections to non-Metrorail regional transit options, including the MARC train, the Amtrak railroad, and local bus routes. See FTA Scenarios Report, at 6; FEIS, ch. 1, at 1. And in contrast to bus rapid transit, light rail would help reduce roadway congestion in a region with a fast-growing population and economy. See ROD, at 3; FEIS, app. A, at 19-20; see also Md. Ridership Assessment, at 7-8, 32. FTA and Maryland, therefore, could reasonably conclude that the Metrorail information submitted by the Friends does not present any new environmental impacts, whether absolute or relative, that were “significant” enough to require preparation of a SEIS.
The Friends resist this conclusion on an additiоnal ground, pointing to Alaska Wilderness Recreation and Tourism Ass‘n v. Morrison, 67 F.3d 723 (9th Cir. 1995). There, the Ninth Circuit required the agency to complete a SEIS in light of significantly changed conditions, namely, the cancellation of a long-term contract upon which the agency‘s chosen alternative depended. Id. at 728-30. No analogous situation exists here. Alaska Wilderness involved a basic change that undercut the rationale upon which the agency action depended. By contrast, even with reduced Metrorail ridership, a light rail Purple Line still meets its Metrorail-connection purpose as well as or better than the other alternatives, and still meets its non-Metrorail-related purposes.
To the extent the district court faulted Maryland and FTA for failing to respond to the Friends’ three declarations questioning and raising methodological concerns regarding FTA‘s ridership numbers in the FEIS, the court‘s analysis is flawed. Friends of the Capital Crescent Trail v. FTA, 253 F.Supp.3d 296, 301-03 (D.D.C. 2017). The district court analogized to Public Employees for Environmental Responsibility v. Hopper, 827 F.3d 1077 (D.C. Cir. 2016), where an agency‘s pоst-remand determination not to prepare a SEIS was vacated because it had ignored and excluded data submitted by the plaintiffs. Id. at 1089-90. That is
In sum, FTA and Maryland‘s explanation of why the Metrorail problems identified by the Friends did not require preparation of a SEIS satisfies the CEQ and FTA regulations on supplementation, this court‘s precedent, and Marsh‘s “rule of reason,” 490 U.S. at 373-74, the overarching principle governing judicial review of NEPA. Because NEPA “does not mandate particular results,” the court‘s role is to ensure that agencies consider all significant and reasonably foreseeable environmental impacts. Robertson, 490 U.S. at 350. Assuming that NEPA requires a SEIS where new information justifies reconsideration of a more environmentally favorable alternative, on this record the court cannot say that the Friends’ Metrorail information constitutes such new information. At most it partially called into question one of the Purple Line‘s purposes. It did not call into question the entirety of the Purple Line, or the choice of light rail over other alternatives, or the Purple Line‘s environmental impact—or at least FTA was entitled to so conclude. FTA and Maryland sufficiently examined the impact of Metrorail issues on the Purple Line‘s three purposes, and reasonably concluded that Metrorail problems would not change the project‘s preferred alternative, grounding that conсlusion on an assessment of five ridership scenarios. These circumstances warrant deference by the court to FTA‘s (and Maryland‘s) reasonable, fact-intensive, technical determination that preparation of a SEIS was not required. Accordingly, we reverse the order requiring FTA to prepare a SEIS.
III.
Separate from the Metrorail-related SEIS issue, the district court granted partial summary judgment to FTA on the Friends’ other environmental challenges to the Purple Line FEIS. Friends of the Capital Crescent Trail v. FTA, 255 F.Supp.3d 60 (D.D.C. 2017). The Friends now appeal three of the district court‘s rulings, contending that the alternatives analysis in the FEIS violates NEPA, as does its indirect effects analysis, and that Maryland‘s elimination of the “green track” mitigation technique necessitates preparation of a SEIS. We agree with the district court that the Friends’ challenges to the sufficiency of the FEIS lack merit. See Defenders of Wildlife, 849 F.3d at 1082.
Although the DEIS compared eight project alternatives, the FEIS for the Purple Line compared only two: Maryland‘s “locally preferred” light rail alternative and the “no-build” option (i.e., taking no action and assuming all planned and in-progress local projects are completed). See
NEPA requires a detailed, meaningful alternatives analysis. See
The reasonableness of the analysis of project alternatives in a FEIS is resolved not by any particular number of alternatives considered, but by the nature of the underlying agency action. See Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 196 (D.C. Cir. 1991). For some agency actions, the FEIS itself should consider a broad range of reasonable alternatives. See, e.g., Union Neighbors United, 831 F.3d at 576-77. But the NEPA process adopted by FTA and Maryland for the Purple Line—an enormously complex project involving coordination between multiple government and private actors—fulfilled NEPA‘s purposes. As the FEIS explained, Maryland initially considered numerous alternatives, evaluating them for their effectiveness in meeting project goals, engineering feasibility, cost, public support, and environmental impact. See FEIS, ch. 2, at 4. Alternatives “not considered reasonable” were “eliminated from further consideration.” Id. The eight alternatives that met the reasonableness standard were evaluated in the DEIS at a range of investment levels. Id. at 5-12. Following further study, Maryland chose the light rail option as its locally preferred alternative. Id. at 12-18. That choice narrowed FTA‘s role: Its ultimate decision was to decide whether or not to fund the preferred alternative. The FEIS therefore focused on comparing light rail and the “no-build” option.
This “funneling approach” adopted by Maryland and FTA, narrowing alternatives over a period of years, was in accord with NEPA‘s “rule of reason,” Marsh, 490 U.S. at 373-74, and common sense: Agencies need not reanalyze alternatives previously rejected, particularly when an earlier analysis of numerous reasonable alternatives was incorporated into the final analysis and the agency has considered and responded to public comment favoring other alternatives. The alternatives analysis contained in the FEIS was sufficient under NEPA. The FEIS permissibly summarizes and expressly incorporates the analysis of eight alternatives contained in the DEIS, identifies the alternatives considered throughout the “New Starts” process, details the methodology used to compare alternatives, and explains the reasons light rail was chosen by Maryland. See FEIS, ch. 2. It then compares the light rail and “no-build” alternatives. See id. ch. 3 (comparing transportation effects); id. ch. 4 (comparing environmental impacts and presenting mitigation measures); id. ch. 9 (evaluating alterna-
B.
The Friends’ challenge to the adequacy of the FEIS‘s examination of the Purple Line‘s indirect environmental effects, see
Under FTA‘s regulations, “indirect effects” are those “caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable“; they include “growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems.”
The analysis of indirect effects addressed in Chapter 7 of the FEIS meets this standard. That chapter defines the area of analysis as “a reasonable walking distance аround station areas of approximately one-half-mile,” and identifies twelve urban light rail stations where the Purple Line would likely induce economic development. FEIS, ch. 7, at 2-6. It uses local land use and zoning plans to describe possible economic development at these stations to the cutoff year 2040. Id. at 6-18. Cautioning that development plans may change for myriad market- and regulation-related reasons, the FEIS describes existing and reasonably foreseeable future projects that could have environmental and socioeconomic effects in areas surrounding the Purple Line Stations. Id. This includes a discussion of water quality and stormwater drainage issues. For example, with respect to Coquelin Run, a stream near a proposed Purple Line station in Chevy Chase, Maryland, the FEIS statеs that “any negative impact to water quality from the increased development [surrounding the station] would be avoided through the requirements of state and federal water quality regulations and the stated intent of the community to restore” the stream, as shown in local planning documents. Id. at 11. The FEIS also acknowledges the potential for increased property values and discusses the potential socioeconomic effects at each station—including residential and commercial displacement, housing stock changes, business migration, and changes to neighborhood character. Id. at 11-18. Additionally, in Chapter 4, it considers environmental justice issues and impacts on poor and minority communities. Id. ch. 4, at 143-69. Because national, state, and local politico-economic factоrs affect these kinds of issues, FTA explains
The Friends rely on Sierra Club v. FERC, 867 F.3d 1357 (D.C. Cir. 2017). There, the court invalidated an indirect effects analysis because the agency had technical and contractual information on “how much gas the pipelines [would] transport” to specific power plants, and so could have estimated with some precision the level of greenhouse gas emissions produced by those power plants. Id. at 1371-74. The court also recognized that “in some cases quantification may not be feasible.” id. at 1374, and this is such a case. Local land use planning documents are inherently less concrete than numerical estimates based on pipeline capacity and contractual usage commitments. FTA discussed Purple Line-induced indirect effects based on local planning and zoning documents while acknowledging the limits of its prediction. Even assuming the indirect effects analysis could “be[] more thorough“, City of Alexandria v. Slater, 198 F.3d 862, 869-70 (D.C. Cir. 1999), the Friends have not identified a critical flaw or glaring hole that would inhibit NEPA‘s information-promoting and accountability goals. See Robertson, 490 U.S. at 348-49.
C.
Likewise unpersuasive is the Friends’ challenge to FTA‘s decision to abandon its commitment to use a “green track” mitigation measure. In responding to public comments, FTA stated in the ROD that the Purple Line “will use” green track in certain locations, in which vegetation would be planted along the light rail route to reduce impervious surfaces, limit stormwater runoff, and provide aesthetic benefits. ROD, attach. C, at 91, 113; see FEIS, ch. 2, at 29. Subsequently, Maryland‘s newly-elected Governor cоnditioned the State‘s continued approval of the Purple Line on cost-cutting changes, including using other trackside mitigation measures such as crushed stone instead of green track. In the Friends’ view, this was a significant change that required preparation of a SEIS to reevaluate the Purple Line‘s stormwater effects.
Although breaking a promise to use green track mitigation may present a political issue, the Friends fail to show the change is legally significant enough to require preparation of a SEIS. Friends, 255 F.Supp.3d at 68-69. Use of green track as a mitigation measure is hardly a central piece of the Purple Line, and FTA could reasonably conclude its elimination does not present a “seriously” different picture of environmental impacts that would require preparation of a SEIS. See Nat‘l Comm. for the New River, 373 F.3d at 1330. State environmental and stormwater standards will apply regardless of whether green track or another stormwater mitigation measure is used, and to that extent the environmental impact is the same. See Overview of Maryland Stormwater Management Requirements and [Maryland‘s] Approach to Stormwater Compliance for the Purple Line (Dec. 2015).
National Wildlife Federation v. Marsh, 721 F.2d 767 (11th Cir. 1983), illustrates the point. There, the agency revised its mitigation plan to consist of planting 200 acres of “green tree reservoirs” (i.e., wooded areas that are seasonally flooded to provide wildlife habitats) and adopting an “intense wildlife management” plan. Id. at 772-73, 782-83. The Eleventh Circuit concluded this was a “change in the character of the land itself,” and therefore required preparation of a SEIS. Id. at 783. Unlike those revisions, which “envision[ed] a change in the types of activities tо be
IV.
Finally, as to the district court‘s order vacating the ROD pending completion of a SEIS, see Friends of the Capital Crescent Trail v. FTA, 200 F.Supp.3d 248, 254 (D.D.C. Aug. 3, 2016), our holdings that a SEIS was not required and that the FEIS challenges lack merit mean the vacatur was error. The court, therefore, need not address the parties’ contentions regarding the validity or not of vacatur.
Accordingly, we reverse the grant of partial summary judgment to the Friends requiring the preparation of a SEIS and vacating the ROD, and we affirm the grant of partial summary judgment to FTA on the Friends’ challenges to the FEIS.
Paul D. Clement, Kasdin M. Mitchell, Attorney, Michael F. Williams, Kirkland & Ellis LLP, Washington, DC, for Plaintiff-Appellant.
Patricia Yeun-Han Lee, Esquire, General Counsel, Washington Metropolitan Area Transit Authority (WMATA), Office of the General Counsel, Donald B. Verrilli, Jr., Chad Ian Golder, Esquire, Attоrneys, Jonathan Meltzer, Munger, Tolles & Olson LLP, Washington, DC, Rex S. Heinke, Akin Gump Strauss Hauer & Feld LLP, Los Angeles, CA, Anthony T. Pierce, Akin Gump Strauss Hauer & Feld LLP, McLean, VA, for Defendants-Appellees.
Shannen Wayne Coffin, Attorney, Steptoe & Johnson LLP, Washington, DC, for Amici Curiae for Appellant.
BEFORE: ROGERS, TATEL, and MILLETT, Circuit Judges
ORDER
PER CURIAM
Upon consideration of the emergency motion for an injunction pending appeal and for expedited consideration of this appeal, the response thereto, and the reply, it is
ORDERED that the motion for a mandatory injunction pending appeal be denied. Appellant has not satisfied the stringent requirements for an injunction pending appeal. See John Doe Co. v. Consumer Fin. Prot. Bureau, 849 F.3d 1129, 1131 (D.C. Cir. 2017); D.C. Circuit Handbook of Practice and Internal Procedures 33 (2017).
Appellant‘s motion for an injunction pending appeal centers on an as-applied claim of unconstitutional viewpoint discrimination. Specifically, Appellant contends that the Washington Metropolitan