TRB Special Report 303: Equity of Evolving Transportation Finance Mechanisms (2011)

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APPENDIX A Legal Basis for Social Impact Assessment and Environmental Justice Considerations in Transportation Decision Making, Planning, Policy, and Projects U.S. Constitution, Article XIV. Equal Protection and Due Process This statute establishes rights, guaranteed privileges and immunities of citizenship, due process, and equal protection: “No State shall make or enforce any law which shall abridge the privileges or immunities of cit- izens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any per- son within its jurisdiction the equal protection of the laws.” See http:// memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=014/llsl014.db& recNum=389. Americans with Disabilities Act of 1990 (P.L. 101-336) The purpose of the Americans with Disabilities Act (ADA) is to ensure equal opportunity for persons with disabilities in employment, state and local government services, public accommodations, commercial facili- ties, and transportation. The ADA requires the establishment of tele- communications device for the deaf (TDD) and telephone relay services. See Americans with Disabilities Act, Questions and Answers, http://www. ada.gov/q%26aeng02.htm. 151 

152 Equity of Evolving Transportation Finance Mechanisms Department of Justice Regulation 28 CFR Part 42, Subpart F, Coordination of Enforcement of Nondiscrimination in Federally Assisted Programs This part implements Title III of the ADA of 1990 (42 U.S.C. 12181), which prohibits discrimination on the basis of disability by public accommodations and requires places of public accommodation and commercial facilities to be designed, constructed, and altered in compli- ance with the accessibility standards established by this part. See http:// www.ada.gov/reg3a.html#Anchor-36000. Department of Transportation Order 5610.2, U.S. Department of Transportation Order on Environmental Justice to Address Environmental Justice in Minority Populations and Low- Income Populations (April 15, 1997) The order describes the process that the Office of the Secretary of Trans- portation and each operating administration will use to incorporate environmental justice principles (as embodied in the executive order) into existing programs, policies, and activities. The order provides that the Office of the Secretary and each operating administration within the U.S. Department of Transportation (DOT) will develop specific proce- dures to incorporate the goals of the DOT order and the executive order with the programs, policies, and activities they administer or implement. This is done through a process developed within the framework of exist- ing requirements, primarily the National Environmental Policy Act, Title VI of the Civil Rights Act of 1964 (Title VI), the Uniform Reloca- tion Assistance and Real Property Acquisition Policies Act of 1970, as amended, the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA), and other DOT applicable statutes, regulations, and guidance that concern planning; social, economic, or environmental matters; pub- lic health or welfare; and public involvement. See http://www.fhwa.dot. gov/environment/ejustice/dot_ord.htm. DOT Policy Guidance Concerning Recipients’ Responsibilities to Limited English Proficient Persons (December 14, 2005) The guidance requires recipients to take reasonable steps to ensure meaningful access to their programs and activities by persons with lim- 

Legal Basis for Social Impact Assessment and Environmental Justice Considerations 153 ited English proficiency (LEP) based on the four-factor analysis set forth in the Department of Justice’s General LEP Guidance. See http://edocket. access.gpo.gov/2005/05-23972.htm. DOT Regulation 49 CFR Part 21, Nondiscrimination in Federally Assisted Programs of the Department of Transportation—Effectuation of Title VI of the Civil Rights Act of 1964 This part effectuates the provisions of Title VI of the Civil Rights Act of 1964 to the end that no person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity receiving Federal financial assistance from the Department of Transportation. See http://www.fhwa.dot.gov/ hep/49cfr21.htm#sec.21.1. Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 1994 Each federal agency is charged to achieve environmental justice as part of its mission by identifying and addressing, as appropriate, dispropor- tionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low- income populations in the United States and its territories. This includes public participation and access to information. See http://www.archives. gov/federal-register/executive-orders/pdf/12898.pdf. Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, 2000 The executive order requires federal agencies and their recipients to examine the services they provide, identify any need for services to those with LEP, and develop and implement a system to provide those services so that persons with LEP can have meaningful access to them. See http://www.justice.gov/crt/cor/13166.php. 

154 Equity of Evolving Transportation Finance Mechanisms Executive Order 13330, Human Service Transportation Coordination, 2004 The purpose of this order is to enhance access to transportation to improve mobility, employment opportunities, and access to community services for persons who are transportation disadvantaged. It also estab- lished an Interagency Transportation Coordinating Council on Access and Mobility (CCAM). Membership includes the Secretaries of Trans- portation, Health and Human Services, Education, Labor, Veterans Affairs, Agriculture, Housing and Urban Development, and the Interior; the Attorney General; the Commissioner of Social Security; and other federal officials as the chairperson of the council may designate. The Sec- retary of Transportation is the chair of CCAM. See http://nodis3.gsfc. nasa.gov/displayEO.cfm?id=EO_13330_. Federal Highway Administration Administrative Order 6640.23, FHWA Actions to Address Environmental Justice in Minority Populations and Low-Income Populations This order establishes policies and procedures for the Federal Highway Administration (FHWA) to use in complying with Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations. The administrative order includes additional components (e.g., aesthetic values). See http://www. fhwa.dot.gov/legsregs/directives/orders/6640_23.htm. FHWA–Federal Transit Administration Memorandum on Title VI Requirements in Metropolitan and Statewide Planning (October 7, 1999) This memorandum provides clarification in implementing Title VI of the 1964 Civil Rights Act (42 U.S.C. 2000d-1) and related regulations, The President’s Executive Order on Environmental Justice, the U.S. DOT order, and the FHWA order. Specifically, the memorandum states that the appropriate time for the Federal Transit Administration (FTA) and FHWA to ensure compliance with Title VI in the planning process is during the planning certification reviews conducted for transportation management areas and through the statewide planning finding rendered 

Legal Basis for Social Impact Assessment and Environmental Justice Considerations 155 at approval of the Statewide Transportation Improvement Program. See http://www.fhwa.dot.gov/environment/ejustice/ej-10-7.htm. FTA Circular 4702.1, Title VI Program Guidelines for Federal Transit Administration Recipients (May 13, 2007) This circular provides recipients and subrecipients of FTA financial assis- tance with guidance and instructions for carrying out DOT’s Title VI regulations (49 CFR Part 21) and for integrating into programs and activities considerations expressed in the department’s Order on Envi- ronmental Justice (Order 5610.2), and Policy Guidance Concerning Recipients’ Responsibilities to Limited English Proficient (LEP) Persons. See http://www.fta.dot.gov/laws/circulars/leg_reg_5956.html for refer- ences related to specific recipients (e.g., states, designated recipients, metropolitan areas, subgrantees). Intermodal Surface Transportation Efficiency Act, 1991 In 1991, ISTEA extended public involvement opportunities in the trans- portation planning process. See http://www.fhwa.dot.gov/environment/ pubinv2.htm. Joint FTA–FHWA Regulation 23 CFR Part 771, Environmental Impact and Related Procedures (August 28, 1987) This regulation prescribes FHWA–FTA policies and procedures for imple- menting the National Environmental Policy Act of 1969 as amended. Key features include “public involvement and a systematic interdisciplinary approach [as] essential parts of the development process for proposed actions. . . . Measures necessary to mitigate adverse impacts [shall] be incor- porated into the action.” See http://ecfr.gpoaccess.gov/cgi/t/text/text-idx? c=ecfr&rgn=div5&view=text&node=23:1.0.1.8.43&idno=23#23:1.0.1.8.43. 0.1.1. Joint FTA–FHWA Regulation 23 CFR Part 450 and 49 CFR Part 613, Planning Assistance and Standards; Section 12 of FTA’s Master Agreement, FTA MA 13 (October 1, 2006) State, metropolitan, local, and designated recipients are required to establish early and continuous public involvement opportunities that 

156 Equity of Evolving Transportation Finance Mechanisms provide timely information about transportation issues and decision- making processes to citizens, affected public agencies, representatives of public transportation employees, freight shippers, private providers of transportation, representatives of users of public transportation, repre- sentatives of users of pedestrian walkways and bicycle transportation facilities, representatives of the disabled, providers of freight transporta- tion services, and other interested parties. See http://ecfr.gpoaccess.gov/ cgi/t/text/text-idx?c=ecfr&sid=7f5985b5d2fe301f3fd5a6f537e6bfb8&rgn =div5&view=text&node=23:1.0.1.5.11&idno=23#23:1.0.1.5.11.1.1.1. National Environmental Policy Act of 1969, as Amended (P.L. 91-190) “The purposes of this Act are: To declare a national policy which will encourage productive and enjoyable harmony between [humans] and [the] environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of [humans]; to enrich the understanding of the ecological sys- tems and natural resources important to the Nation; and to establish a Council on Environmental Quality.” See http://ceq.hss.doe.gov/nepa/ regs/nepa/nepaeqia.htm. Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users, P.L. 109-59, 2005 The Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) continued to broaden opportunities for public participation in transportation decision making established in ISTEA and TEA-21. See http://www.fhwa.dot.gov/environment/ pubinv2.htm. Section 12 of FTA’s Master Agreement, FTA MA 13 (October 1, 2006) FTA recipients must agree to comply with all applicable civil rights laws, regulations, and directives. These include, but are not limited to, non- discrimination in federal public transportation programs, nondiscrimi- 

Legal Basis for Social Impact Assessment and Environmental Justice Considerations 157 nation (Title VI of the Civil Rights Act), and equal employment oppor- tunity. See http://www.fta.dot.gov/documents/13-Master.doc. Transportation Efficiency Act for the 21st Century, P.L. 105-108, 1998 The Transportation Efficiency Act for the 21st Century (TEA-21) con- tinued to broaden opportunities established in ISTEA for public partic- ipation in transportation decision making. See http://www.fhwa.dot. gov/environment/pubinv2.htm. U.S. Code of Federal Regulations, Title 42: The Public Health and Welfare: Chapter 61. Uniform Relocation Assistance and Real Property Acquisition Policies for Federal and Federally Assisted Programs (42 U.S.C. 4601, et seq.) This subchapter establishes a policy for the fair and equitable treatment of persons displaced as a direct result of programs or projects undertaken by a federal agency or with federal financial assistance. The purpose is to ensure that such persons shall not suffer disproportionate injuries as a result of programs and projects designed for the benefit of the public as a whole and to minimize the hardship of displacement on such persons. See http://uscode.house.gov/download/pls/42C61.txt.