every kind as municipal functions, and for that purpose to purchase or lease the necessary plants, buildings, and lands, to purchase or hire horses and horse-drawn vehicles, passenger-carrying and other motor-propelled vehicles, equipment, and machinery, and to employ expert and other personal services, and labor, and to pay traveling, maintenance, incidental, and contingent expenses." (emphasis supplied). Therefore, the Council clearly has the authority in the broadest terms to regulate the collection and disposition of garbage, and the District of Columbia is not required by statute either to collect or to dispose of all refuse in the District of Columbia but only that part which it deems shall be in the best interest of the District of Columbia. The Council has apparently decided that it is not in the best interest of the District of Columbia to allow or disposal facilities to be used by businesses for the disposal of their solid waste free of charge. That decision in view of the air pollution problems confronting the District of Columbia and this jurisdiction's size and population is an eminently reasonable one, and one which Congress in all of the statutory provisions cited above has left to the discretion of the local government. Licensed refuse collectors are not required by this jurisdiction to use the District's disposal facilities; however, if they desire to do so they must pay the fee provided in the regulations. There is abundant authority in the D.C. Code and the Appropriations Acts for the District of Columbia to support this kind of regulation. CONCLUSION Based upon the foregoing, it is respectfully submitted that plaintiffs' motion for a preliminary injunction should be denied and defendants' motion for summary judgment should be granted. C. FRANCIS MURPHY, Assistant Corporation Counsel, D.C. Assistant Corporation Counsel, D.C. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CIVIL ACTION No. 101-72 METROPOLITAN D.C. REFUSE HAULERS ASSOCIATION, ET AL., PLAINTIFFS v8. WALTER E. WASHINGTON, ET AL., DEFENDANTS DEFENDANTS STATEMENT OF MATERIAL FACTS TO WHICH THERE IS NO GENUINE ISSUE In compliance with Rule 9(h), Local Civil Rules, defendants respectfully submit the following material facts as to which there is no genuine issue: 1. On June 29, 1971, the District of Columbia Council enacted D.C. Council Regulation No. 71-21, dealing with the disposal of solid waste. 2. Section 8-3:606(e) of D.C. Council Regulation No. 71-21 requires each licensee to pay no less than $6.00 per ton for solid waste disposal provided at any District owned, contracted, or operated facility. 3. Plaintiffs in the above-entitled proceeding are engaged in the business of refuse collection within the District of Columbia. 4. Section 8-3:606 (e) of the D.C. Solid Waste Regulations has gone into effect on January 19, 1971. C. FRANCIS MURPHY, Assistant Corporation Counsel, D.C. JOHN H. SUDA, Assistant Corporation Counsel, D.C. EXHIBIT 2 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CIVIL ACTION No. 101-72 METROPOLITAN D.C. REFUSE HAULERS ASSOCIATION, ET AL., PLAINTIFFS vs. WALTER WASHINGTON, Et al., DefenDANTS MEMORANDUM OPINION AND ORDER Plaintiffs bring this action to enjoin defendants from proceeding in any manner to impose or collect a disposal charge on refuse haulers pursuant to District of Columbia Council Regulation No. 71–72. On March 24, 1972 this matter came before the Court on plaintiffs' motion for a preliminary injunction and crossmotions for summary judgment. Plaintiff Metropolitan D.C. Refuse Haulers Association is an unincorporated association of refuse collection and hauling firms operating within the District of Columbia. The corporate plaintiffs engage in the collection and hauling of refuse from commercial establishments and governmental agencies within the District. Defendant Walter E. Washington is the Mayor of the District and defendants James P. Alexander and William E. McKinney are Director of Environmental Services and Director of Solid Waste Management Administration, respectively. The regulations at issue here, entitled "Solid Waste Disposal Regulations," were promulgated by the Council on July 29, 1971 to establish standards for storage, collection, transportation and disposal of solid wastes, thus promoting the health, safety and welfare of residents and enhancing and improving the environment. Section 8-3:606 of Regulation No. 71-21 provides, inter alia, that a license is required for each vehicle engaged in the collection or transportation of solid wastes and that, in addition to the license fee, each licensee shall pay no less than $5 per ton for solid waste disposal provided at any District owned, operated or contracted facility. The $5 per ton disposal charge, which plaintiffs seek to enjoin, became effective on January 19, 1972. Plaintiffs claim that the Council did not have the authority to impose the disposal charge and that the charge is violative of equal protection and due process. Plaintiffs urge that even if the Court were to find that the Council had authority to enact that provision of Regulation No. 71-21 summary judgment cannot be granted to defendants because material issues of fact remain in connection with their constitutional claims. Congress has delegated power to the Council to enact the licensing and disposal charge provisions in Regulation No. 71-21. Section 1-226, D.C. Code (1967 ed.), authorizes the Council to make and enforce ". . . reasonable and usual police regulations . . . as they may deem necessary for the protection of lives, limbs, health, comfort and quiet of all persons within the District of Columbia." Further, the Council is specifically authorized to enact necessary regulations for the collection and disposition of refuse, conduct any or all of the operations necessary for collection and disposal, and provide for penalties to secure enforcement. Sections 6-501 & 504, D.C. Code (1967 ed.). The Council has the power to require licenses of businesses which, in its judgment, require inspection, supervision or regulation and to fix license fees commensurate with the costs of such inspection, supervision or regulation. Section 47-2344, D.C. Code (1967 ed.). More recently, in the District of Columbia Air Pollution Control Act, Section 6-811, et seq., D.C. Code (Supp. Iv. 1971), Congress empowered the Council to take such action as is necessary to protect and enhance the quality of the District's air resource. That statute mandates the Council to provide regulations for solid waste disposal and salvage operations. Plaintiffs' constitutional claim, basically, is that the regulation arbitrarily and unreasonably imposes the disposal charge only upon commercial refuse haulers. They claim that governmental agencies, which will be exempt from the charge, may haul their own refuse, to plaintiffs' detriment; that where they have already entered into contracts with customers the disposal charge represents a taking of their property without due process; and that they will be made to bear an unfair burden because commercial haulers use only landfills, which are operated by the District for a per ton cost of much less than $5, whereas the District, which is exempt from the charge, uses incinerators for the disposal of residential refuse at a per ton cost of substantially more than $5. Congress has distinguished between residential refuse, which is collected by the District, and refuse which is collected by commercial haulers such as plaintiffs. In the Appropriations Act for 1961 (Public Law 86-412, 74 Stat. 17) Congress provided that the appropriation would not be available for the collection of refuse from hotels, businesses or certain multiple dwelling buildings. That restriction on the use of funds by the District has been carried forward in subsequent appropriation measures through the fiscal year ending June 30, 1972. That restriction and the statutory delegations of authority discussed earlier reveal a legislative purpose to grant the Council broad authority to regulate the collection and disposal of non-residential refuse. Those legislative enactments also make it apparent that the Council did not act in an arbitarry or unreasonable manner in imposing the disposal charge on haulers of refuse collected from other than residences and that such action is in accord with the intent of Congress. Therefore, it appearing to the Court that the District of Columbia Council had authority to enact Regulation No. 71-21, that plaintiffs' constituional challenge is wihout merit, and that there are no material issues of fact, it is this 28th day of March 1972 Ordered that defendants' motion for summary judgment be and it hereby is granted, and it is further Ordered that plaintiffs' motion for summary judgment be and it hereby is denied and that plaintiffs' motion for a preliminary injunction be dismissed as moot. cc: Alexander Boskoff, Esq. 111 E Street, N.W. John H. Suda, Esq. Assistant Corporation Counsel EXHIBIT 3 JOHN LEWIS SMITH, Jr., United States District Judge. LEGAL ASPECTS OF BANNING AUTOMOBILES FROM MUNICIPAL BUSINESS DISTRICTS 1. INTRODUCTION Huge lighthearted throngs ambled down autoless streets as the city heeded Earth Day's call for a regeneration of a polluted environment. . . . For two hours... the internal combustion engine was banned from Fifth Avenue between 59th and 14th Streets. . . . 1 "[It was a day that] the city caught its breath." The influence of automobiles on city life is dramatized by their omnipresence. The above scenario suggests at least one of the city's response to the urgent need to grapple with the problems posed by the presence of automobiles. In a country of slightly more than two hundred million people, there were an estimated 108,977,000 motor vehicles registered in 1970, an increase of 3.7 percent over 1969's figures of 105,096,603.3 Of this total, 89,861,000 vehicles were estimated to have been automobiles, with the remainder composed of trucks and buses. Due to the nature of the internal combustion engine, emissions of noxius carbon monoxide and hydrocarbons are necessary concomitants to the operation of such vehicles. As a result, the level of pollutants entering the air of American cities today has risen in direct proportion to the increased ownership and use of motor vehicles. The effect of these vehiclar emissions is described by the chairman of New York City's Task Force on Air Pollution in the following manner: "The combustion engine exhaust pipe has replaced the smokestack as the greatest producer of air pollution in the city.” Cars, trucks,and buses spew out 1,609,800 tons of poisonous fumes in * Telephone interview, Statistics Office, Federal Highway Administration, United States Department of Transportation, Washington, D.C., Feb. 18, 1971. Id. J. Esposito, Vanishing Air 222 (1970). New York City each year, constituting approximately sixty percent of its total air pollution. The economic cost due to damage to property from this contamination may run as high as eleven million dollars annually. More important is the possible damage to health, especially the effect of automotive pollution on persons with heart conditions and respiratory ailments. Abatement of the deleterious aspects of this pollution could be achieved through the installation of pollution-control devices on all vehicles as well as the use of non-leaded gasolines. This, in effect, is the object of several federal and state statutory schemes which have been recently enacted or proposed. Yet, air pollution is only one of the problems caused by the automobile in the city today, and the statutory schemes alluded to above do not deal with traffic congestion or lack of parking facilities: In a city such as New York, traffic congestion is an accepted way of life to the one million persons who venture into Manhattan each day. Once these commuters reach their destination, their woes are hardly eased. Lack of on-street parking facilities is another feature of urban life which must be confronted. In an attempt to curb the congrestion caused by the great number of vehicles on its streets, New York City last year prohibited all on-street parking in a fifty-block area of lower Manhattan." This attempt at alleviating one problem paradoxically exacerbated another. While off-street parking facilities were available, they did not meet the requirements of the actual number of vehicles seeking parking." Consequently, drivers became scofflaws, and disregarded existing parking bans on the street, thus necessitating an increased number of patrolmen and metermaids to distribute summonses among the parking offenders. It is questionable whether the use of this great number of police for traffic-related purposes is an effective allocation of resources in light of the surging crime rate in most American metropolitan centers." In addition to these effects of the automobile, there are also aesthetic considerations, such as the desirability of pedestrian malls and walking plazas, which militate against the continued use of the automobile in the city. 13 15 For these reasons the notion of separating pedestrian and vehicular traffic has been espoused by various city planners and government officials. The proposed schemes have ranged from single street closings, such as the current District of Columbia City Council plan for F Street, N.W., to elaborate plans according to which all motor vehicles would be kept beneath the ground in cer 16 Id. It is estimated that motor vehicles alone emit daily more than one-half of a million pounds of carbon monoxide, sixty-six million pounds of hydrocarbons and eight million pounds of nitrogen oxide. J. Bollens & H. Schmandt, The Metropolis: Its People, Politics, and Economic Life 181 (2d ed. 1970) [hereinafter cited as Bollens & Schmandt]. 7 Bollens & Schmandt, supra note 6, at 182. s Id. Clean Air Amendments of 1970, 84 Stat. 1676; Cal. Health and Safety Code §§ 39081-96 (West Supp. 1971); Wis. Stat. Ann. § 144.42 (1970 Supp). 10 Telephone interview with M. Reilly, Department of Traffic, City of New York, April 6, 1971. This figure is based upon an average of 12 persons per vehicle so that approximately 600,000 vehicles actually enter Manhattan daily. 11 N.Y. Times, Sept. 10, 1970, at 1, col. 3. 12 American Automobile Association President Phillips has charged that there are not enough places to park and that present curb spaces are already severely limited. N.Y. Times, May 19, 1970, at 27, col. 2 and Sept. 10, 1970, at 1, col. 4. 13 N.Y. Times, Nov. 8, 1970, at 55, col. 4. An entirely separate traffic division whose responsibility includes parking enforcement and towaway programs has been created because of the increased automobile related offenses requiring police control. See also N.Y. Times, Nov. 10, 1970, at 49, col. 1. 14 Federal Bureau of Investigation, Crime in the United States, Uniform Crime Reports 1969, at 2. See also Federal Bureau of Investigation Press Release, Mar. 29, 1971 (preliminary figures indicate that the number of crimes in the United States continued to increase during 1970). 15 One suggestion for separating pedestrian and vehicular traffic is made by Richard Dober, who maintains that the inherited street and road system is unsatisfactory for automobile traffic. He suggests that vehicular traffic should be contained in channels and areas designed solely for that purpose. In his plan there would be three components: "environmental zones for human activity, access zones for parking and points of service relating to motor vehicles, and corridors for vehicular movement." R. Dober, Environmental Design 254 (1969). See also the various plans of Le Courbusier and Hilberseimer, and Victor Gruen's 1955 scheme for Fort Worth, Texas, which were all mentioned in the Dober book. 18 Telephone interview with Robert Gray, Planning Director. Downtown Progress, National Capital Downtown Committee, Inc., Washington, D.C., Feb. 10, 1971 (hereinafter cited as Interview with Gray]. See also Downtown Progress, Statement Before the District of Columbia City Council concerning the closing of F Street, N.W. to Vehicular Traffic, Sept. 23, 1970, on file at the office of the Columbia Journal of Law and Social Problems. tain sectors of the city." In many areas plans actually in operation implement this same notion of separating pedestrian and vehicular traffic. In Warsaw, Poland, cars are banned in most of the Old Town as a first step in ridding the streets of traffic. To accommodate the needs of the merchants within the area, truck deliveries are permitted between six A.M. and eleven A.M., but prohibited at all other times." 19 In January, 1970, New York City began what might be viewed as the opening wedge of a concerted effort to bar all private cars from daytime street use in the heart of Manhattan when it banned all parking at one thousand metered spots between First and Ninth Avenues, from Thirty-Fourth to Seventy-Second Street." The first attempt, however, to prevent the actual operation of automobiles on Manhattan's congested streets did not occur until Earth Day, April 22, 1970, which was proclaimed to dramatize the deterioration of America's environment. New York City chose to celebrate the event by banning cars for four hours on Fifth Avenue and Fourteenth Street." The effect of this action on the air pollution levels was startling. The Department of Air Resources recorded thirteen parts of carbon monoxide for each million parts of air just before the ban, and during the ban, the level had dropped to two parts per million.22 Buoyed by this decrease in pollution and apparently favorable public reaction, the Lindsay administration subsequently closed Fifth Avenue from ten A.M. to five P.M. to all but cross-town traffic from Forty-Second Street to FiftySeventh Street for four successive Saturdays beginning on July 11, 1970. To provide transportation along the auto-less route, a free shuttle service on six mini-trains was installed. The effect on pollution levels of these Saturday prohibitions once again indicated that substantial relief could be achieved through a ban on the internal combustion engine. As a result of this experiment, other Manhattan street bans were effectuated on Lexington Avenue and Eighth Street, illustrating that "the general concept of street closings is now firmly established as city policy." 28 De Leuw Cather & Co., Long Range Transportation Plan for the Central Business of 1970, on file at the office of the Columbia Journal of Law and Social Problems. District of Dallas, Texas 12 (1965). The following recommendations were included: (1) to gradually convert Main Street into a pedestrian mall with roadways for buses and emergency vehicles only; (2) to build pedestrian ways throughout the central business district; (3) to build transportation terminals along the freeway loop with direct ramp connections to the central business district; and (4) to build truck terminals under Main Street. The underground truck terminals would form a one-way loop and be connected to freight terminals in the fringe area. Self-propelled vehicles would be loaded at the terminals and dispatched automatically to any of fifty destinations. Id. at 97. See also the statement of Wilfred Owen, Senior Fellow at the Brookings Institute, WashIngton, D.C., regarding a plan for New York City along these lines: It is quite apparent that all or part of Manhattan will have to be declared off limits to the car. We can force the vehicle underground as in Brussels, in short stretches of tunnels to underpass three or four intersections. Fifth Avenue could be paved over as a pedestrian street and its pedestrians removed from the noise and smell and hazards of the mechanical monsters. Movement could be facilitated with stretches of moving sidewalks. Deliveries to stores could be made at night. In every European city which, over the protest of the businesses, has adopted this strategy, sales have sharply increased. N.Y. Times, June 3, 1971, at 90, col. 1. 18 N.Y. Times, Aug. 16, 1970, at 18, col. 4. Id. Somewhat analogous is the ban of automobiles from the east end of Yosemite National Park. N.Y. Times, Jul. 10, 1970, at 14, col. 1. Although instituted to "materially diminish congestion and the pollution effects of noise and exhaust emissions," the ban does not affect vehicular access to park operations or park headquarters. Id. N.Y. Times, Jan. 6, 1970, at 1, col. 6. NY. Times, Apr. 23, 1970, at 1, col. 3. N.Y. Times, Apr. 24, 1970, at 28, col. 4. She public reaction appeared to be so favorable that Constantine Sidamon-Eristoff, Chief of New York City's Transportation Administration, referring to his proposal to turn Forty-Second and Fifty-Third Streets into mid-day shopping malls by banning traffic, remarked: "This could give me the handle I need for my shopping malls." N.Y. Times, Apr. 24, 1970, at 28, col. 6. 24 N.Y. Times, Jul. 1, 1970, at 1, col. 8. Id., at 32, col. 6. N.Y. Times, Jul. 12, 1970, at 52, col. 4. After the first Saturday closing the carbon monoxide levels were decreased to one part per million, or about one-tenth of the usual weekday figure. Id. NY. Times, Aug. 6, 1970, at 1, col. 4. |