# Presentation: 928676

## Environmental Justice and Transportation Decisionmaking

- Wendell Stills
- Federal Highway Administration

## Contact Information

- Wendell Stills
- FHWA
- Office of Human Environment
- 400 7th Street, S.W. Room 3301
- Washington, DC 20590
- 202-366-2052
- wendell.stills@fhwa.dot.gov
- http://www.fhwa.dot.gov/environment/ej2.htm

## Title VI

**Title VI**

**Environmental **
**Justice**

**Low-Income**

**Minority**

**Race**

**Color**

**National**
**  ****Origin**

- Gender

- Religion

- Age

- Disability

**Notes:**
Vendiagram illustrates relationship between protected classes under Title VI and populations emphasized in the Executive Order.

## 1964 Civil Rights Act Title VI

-    No person in the United States shall, on the basis of race, color, or national origin, be _excluded from participation_ in, be _denied the benefits_ of, or be _subjected to discrimination_ under any program or activity receiving Federal financial assistance.

**Notes:**
-- This is specific language from Title VI of the 1964 Act.
-- Note: protection is not limited to citizens.  Protection is not limited to minorities.  Protection for all people in the United States.
-- Protection includes (A) Participation (public involvement); (b) access to benefits, and (C) freedom from discrimination.
-- This affects all agencies who revive any federal funds.  All  projects and activities are covered, not just those using federal funds.

## Executive Order 12898

- Signed February 11, 1994
- What is an Executive Order?
- Who is responsible for complying?

**Notes:**
-- Often hear “what is an executive order?  What is the status of an executive order?  What power does it have?  Who must comply?”
-- Executive Order are directions signed by the President 
-- Provides directions federal executive agencies to take specific actions
-- Not a law or statue.  Can not file complaint or suit  based on EJ. Can file a complaint on Title VI.  Can file suit under Title VI or NEPA.  
-- History of EJ Order from 1980s, grass roots protests and a study regarding the placement of toxic waste dumps.  1990s national conferences and pressure on USEPA.
-- USDOT is responsible for  ensuring environmental justice in USDOT program and in agencies that USDOT funds
-- Underpinned by Title VI non-discrimination.   Also, other legislation: NEPA, Uniform Act, TEA-21
-- Enforcement of Executive Orders through existing laws and regulations.

## Environmental Justice

- Executive Order 12898
- Does not change the legal thresholds and statutory interpretations for USDOT
- Consistent with Title VI of the Civil Rights Act
- Disproportionate impacts - Can programs and projects move forward?
- No Specific format for analysis
- Integrate analysis in appropriate manner
- EJ & low-income

**Notes:**
The principles of Analysis are applied in light of these considerations ...
... the EO did not change any legal thresholds or statutory interpretations under NEPA or existing case law (EIS is required when there “significant" impacts).
(Agency consideration of impacts on low-income / minority populations, may lead to the identification of disproportionately high and adverse human health or environmental effects that are significant and that otherwise would be overlooked.)
- Title VI of the Civil Rights Act of 1964, prohibits discrimination on the basis of race, sex, color, national origin, or religion.  An agency should consider using Title VI as a means to prevent or eliminate discrimination.
- Under NEPA, identification of a disproportionately high and adverse environmental effect on a low-income / minority population, does not preclude action from going forward, nor does it necessarily compel a conclusion that a proposed action is environmentally unsatisfactory ...
... it should heighten agency attention to alternatives, mitigation strategies, monitoring needs, and preferences expressed by the affected community or population.
- The EO nor CEQ guidance prescribes any specific format for examining environmental justice, such as designating a specific chapter or section in an EIS or EA on environmental justice issues ...... 
.... Agencies should integrate analyses of environmental justice concerns in an appropriate manner so as to be clear, concise, and comprehensible within the general format suggested by 40 C.F.R. § 1502.10.
-- There have been cases in  law where disproportionate impacts may exist and be considered reasonable and do not constitute discrimination.  Cases depend on fact bases analysis and included real alternatives.  [If asked: Generally, no discrimination if there was no reasonable alternative.]
-- In transportation, lack of clear  history to guide on system level  analytic methods or tests
-- Executive order includes low-income.  [If asked, low income covered by statues outside of Title VI.  TEA-21 Sec. 1203 and 1204 require participation by representatives of public transit users in the planning process (metro and statewide).  Also continues spirit of current 23CFR Sec. 450, “seek out and consider the needs of those traditionally under served including but not limited to low-income and minority households ... “]

## Environmental Justice

- _Avoid, minimize or mitigate_ disproportionately high and adverse ... _effects_ on minority populations and low income populations
- Ensure the full and fair _participation_ ...
- Prevent the denial of ... _benefits_ by minority populations and low income populations

**Notes:**
This language follows from USDOT Order and is summarized in the EJ  brochure.
-- USDOT long-standing encouragement of long-term and  meaningful engagement  Transportation projects can support multiple public policy goals including goals not directly related to transportation as long as the transportation need also is met.  However, transportation officials should not have to stand alone.  If there are other issues to address, the appropriate people should stand alongside (State EPA, economic development ... )

## Environmental Justice

**Principles**
**Consider**
- the composition of the region or 2affected area
- the potential for multiple or cumulative exposure
- the interrelated cultural, social, occupational, historical, and economic factors
**Develop** effective public participation
**Assure** meaningful community representation

**Notes:**
CEQ Guidance -- There is no standard formula for how environmental justice issues should be identified or addressed.  
Six principles provide general guidance - Agencies should 
- Consider the composition of the affected area ... to determine if minority / low-income populations are present and if they will be effected 
... and whether or not the effects are disproportionately high and adverse 
- Consider the potential for multiple or cumulative exposure to impacts in the affected population and historical patterns of exposure to environmental hazards.  (should consider these multiple, or cumulative effects, even if effects are not within the control or subject to the discretion of the agency proposing the action).
- Recognize the interrelated cultural, social, occupational, historical, or economic factors that may amplify the environmental effects of the action ...
.... these factors include: physical sensitivity of the community / population to particular impacts; the effect of any disruption on the community structure; and the nature and degree of impact on the physical and social structure of the community. 
- Develop effective public participation strategies. - linguistic, cultural, institutional, geographic, and other barriers and incorporate - active outreach to affected groups.
- Assure meaningful community representation in the process. Be aware of the diverse constituencies within any community and endeavor to have complete representation of the community as a whole ... 
... early as possible if it is to be meaningful.
-- Understand that  Community’s interest may include historic and other non-transportation related future factors [example: every community getting some new busses, but some communities have never had new buses.]

## Why Title VI/EJ?

- It makes sense
- It is democratic
- It is the law

**Notes:**
-- There is a basis for these materials in law.  However, the FHWA and FTA foucs is proactive rather than reactive.  
-- Provides better decisions
-- Can reduce project controversy
-- Result in more context sensitive facilities
-- These materials will help participants serve all of their respective constituencies
-- It responds to the transportation needs of all people
-- It focuses on being proactive.
-- Strengthens community partnerships
-- Provides opportunity to leverage local resources and have transportation contribute towards a common community vision
-- Can improve analysis
-- Can avoid the perpetuation and lingering effects of prior discrimination.
[WORKSHOP: Can ask for questions on this material.  Can ask commitments made by their agencies.  
RECAP: Why Title VI/EJ in planning?  Sets context.  Credit for work up front.  Can identify unintended consequences before it is too late.