Cover Image

Not for Sale



View/Hide Left Panel
Click for next page ( 300


The National Academies | 500 Fifth St. N.W. | Washington, D.C. 20001
Copyright © National Academy of Sciences. All rights reserved.
Terms of Use and Privacy Statement



Below are the first 10 and last 10 pages of uncorrected machine-read text (when available) of this chapter, followed by the top 30 algorithmically extracted key phrases from the chapter as a whole.
Intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text on the opening pages of each chapter. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.

Do not use for reproduction, copying, pasting, or reading; exclusively for search engines.

OCR for page 299
APPENDIX A ENVIRONMENTAL JUSTICE REGULATIONS AND GUIDANCE OVERVIEW This appendix summarizes the statutes and regulations that govern and, to some extent, motivate environmental justice assessments for transportation projects. The information is organized into four topics: 1) A description of the statutes, regulations, orders, and policies that form the legal framework for environmental justice in general and transportation projects in particular; 2) A summary of the legal issues addressed by those statutes, regulations, orders, and policies; 3) A summary of the minimum requirements for a legally sufficient environmental justice assessment; and 4) A discussion of best practices for environmental justice, as distinct from the question of legal sufficiency. Most of the material for this appendix is drawn from other summaries to which you should refer for a more detailed presentation. In particular, see the following: The National Cooperative Highway Research Program (NCHRP) report, Technical Methods to Support Analysis of Environmental Justice Issues, a thorough and comprehensive review of the legal framework for environmental justice issues in transportation, including a review of recent case law (Cambridge Systematics, Inc. 2002). Appendix D of NCHRP Report 456, Guidebook for Assessing the Social and Economic Effects of Transportation Projects, an overview of the major federal statutes relating to environmental justice, including Executive Order 12898 (Forkenbrock and Weisbrod 2001). THE LEGAL FRAMEWORK FOR ENVIRONMENTAL JUSTICE This section reviews the federal statutes and regulations that provide the primary legal basis for applying environmental justice policies to transportation plans, programs, and projects. Statutes and implementing regulations Title VI of the Civil Rights Act of 1964. The Civil Rights Act is the foundation for most federal rules, regulations, and mandates concerning nondiscrimination in federal activities. Title VI of the Civil Rights Act of 19641 requires that any program or activity receiving federal financial assistance be free of discriminatory effect with regard to race, color, or national origin. 1 42 USC 2000d-2000d-4. 307

OCR for page 299
The key section states: No person in the United States shall, on the ground 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. Later, the Civil Rights Restoration Act of 1987 clarified Title VI to cover all programs and activities of federal-aid recipients, subrecipients, and contractors, whether or not such programs and activities were federally funded. Both the United States Department of Transportation (U.S. DOT)2 and the Federal Highway Administration (FWHA)3 have issued regulations governing the implementation of Title VI. National Environmental Policy Act of 1969. The National Environmental Policy Act4 (NEPA) requires federal agencies to consider environmental impacts before taking major actions that have the potential to significantly affect the human environment. In contrast to Title VI, which prohibits certain activities, NEPA is purely procedural. In other words, NEPA defines procedures that must be followed before making a decision but does not restrict the decisions that can be made once the required procedures have been completed. As interpreted in the Council on Environmental Quality (CEQ) regulations5, NEPA establishes two types of procedural requirements. These are evaluating effects and providing opportunities for public involvement. NEPA requirements evaluating effects. As interpreted by the CEQ, NEPA requires that "reasonably foreseeable" direct, indirect, and cumulative effects of a proposed action be considered in the decision making process. The term "effects" has been defined by the CEQ to include "aesthetic, historic, cultural, economic, social, or health" effects. According to the CEQ regulation, FHWA policy (FHWA 1987) requires consideration in an environmental impact study (EIS) of impacts on "general social groups" affected by the action, including "minority and ethnic" populations, the elderly, the handicapped, and the transit- dependent. The same policy also states that the EIS should address whether any social group is disproportionally impacted and identify possible mitigation measures to avoid or minimize adverse impacts. Thus, the FHWA's implementing policies for NEPA require at the least an analysis in the form of an EIS of the potential for disproportionate effects on protected population groups. While the 2 49 CFR 21.5(b). 3 23 CFR 200. 4 42 USC 4321-4347. 5 40 CFR Part 1500 1508. 308

OCR for page 299
policies do not specifically mention low-income groups, the reference to "general social groups" could be interpreted to signify low-income populations in addition to those groups specifically mentioned in the policy. NEPA requirements public involvement. NEPA also requires public involvement in the environmental review process. Both the CEQ and FHWA implementing regulations are very flexible in terms of how one determines the appropriate public involvement procedures in each case. The CEQ regulations require agencies to make diligent efforts to involve the public in preparing and implementing their NEPA procedures, and require agencies to provide public notice of NEPA-related hearings, public meetings, and the availability of environmental documents. The FHWA regulations establish similarly broad requirements. They require each state to adopt a public involvement/public hearing program for use in the NEPA process. This program must include, among other things, early and continuing opportunities during project development for the public to be involved in the identification of social, economic, and environmental impacts, as well as impacts associated with relocation of individuals, groups, or institutions. Title 23 of the Federal-Aid Highway Act of 1970. A year after NEPA was passed, the Federal- Aid Highway Act (FAHA) of 19706 further clarified the role of community and environmental impact assessment in evaluating potential transportation investments. The law requires that: [P]ossible adverse economic, social, and environmental effects relating to any proposed project on any Federal-aid system have been fully considered in developing such project, and that the final decisions on the project are made in the best overall public interest, taking into consideration the need for fast, safe and efficient transportation, public services, and the costs of eliminating or minimizing such adverse effects [as] the following: 1. air, noise, and water pollution; 2. destruction or disruption of man-made and natural resources, aesthetic values, community cohesion and the availability of public facilities and services; 3. adverse employment effects, and tax and property values losses; 4. injurious displacement of people, businesses and farms; and 5. disruption of desirable community and regional growth. Thus, the FAHA requires the consideration, in some form, of socioeconomic effects when making decisions on transportation projects. However, two important caveats should be kept in mind in evaluating the legal relationship between the FAHA and environmental justice. 6 23 USC 109(h). 309

OCR for page 299
The FAHA does not prohibit actions that have disproportionate impacts on a particular resource or social group. On the contrary, it requires decisions to be made in the "best overall public interest." By mandating that decisions be based on the good of the public as a whole, the FAHA implicitly allows for decisions that, in some cases, may disproportionately impact a particular resource or group. The FAHA applies to "all proposed projects with respect to which plans, specifications, and estimates are approved by the Secretary [i.e., the U.S. Secretary of Transportation] after the issuance of such guidelines." Over time, the role of the U.S. DOT in approving plans, specifications, and estimates (PS&E) has been greatly reduced as PS&E approval authority has been delegated to individual states. Today, PS&E approval authority has been, or can be, delegated to state DOTs for all noninterstate projects.7 Thus, in any state that has received full delegation of PS&E approval authority, the only projects that are still subject to the FAHA are those on the interstate system. Other civil rights statutes. While Title VI, NEPA, and the FAHA provide the primary statutory basis for environmental justice in transportation projects, several other statutes are deserving of mention: The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 19708 provides that all groups should be treated uniformly and fairly in the case of residential relocations resulting from eminent domain. Title VIII of the Civil Rights Act of 19689 (Fair Housing Act) designates protected populations, taking into account "race, color, religion, sex, handicap, familial status, or national origin" in relocation decisions. The Age Discrimination Act of 197510, prohibits age discrimination in federally assisted programs. The Americans with Disabilities Act of 199011 protects persons with disabilities. Chapter 21 of the Civil Rights Act of 196412 provides the legal basis allowing private plaintiffs to bring disparate impact claims. 7 23 USC 106(c). 8 42 USC 4601-4655. 9 42 CFR 3601-3619. 10 42 USC 1601-1607. 11 42 USC 12101-12213. 12 42 USC 1983. 310

OCR for page 299
Executive orders and implementing regulations In addition to the statutes described above, several executive orders have addressed environmental justice and related issues. Executive orders are policy statements issued by the executive branch of government. Their purpose is to set forth operational guidelines for federal departments and agencies. As such, they exert considerable influence on the activities of those departments and agencies, although they do not carry the force of law, as do the statutes described in the previous section. Executive Order 12898. On February 11, 1994, President Clinton issued Executive Order (EO) 12898, "Federal Actions to Address Environmental Justice in Minority Populations and Low- Income Populations." The order requires each federal agency to make environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations. Thus, EO 12898 addresses both the requirements for equal justice embodied in Title VI and the requirements for environmental protection embodied in NEPA. As such, it is the seminal policy for environmental justice. As directed by EO 12898, representatives from 17 federal departments and agencies were convened to form the Interagency Working Group on Environmental Justice. The Interagency Working Group issued guidance interpreting key terms in the EO. Later, individual agencies, including the U.S. DOT, issued their own environmental justice policies, which govern the activities of those agencies. The key policy documents governing FHWA are as follows: U.S. DOT Order 5610.2, "Department of Transportation Actions to Address Environmental Justice in Minority Populations and Low-Income Populations" (February 3, 1997. FHWA Order 6640.23, "FHWA Actions to Address Environmental Justice in Minority populations and Low-Income Populations" (December 2, 1998). In addition to these policies, FHWA issued a number of memoranda from headquarters to field offices on the topic of environmental justice in 1999 and 2000 (Wykle and Linton 1999; Burbank and Adams 2000). FHWA also maintains statements of its environmental justice policies on its Web site. These memoranda and Web site materials provide additional guidance on FHWA's interpretation of the requirements of EO 12898. Other pertinent executive orders. In addition to EO 12898, which directly addresses environmental justice policy, two other Executive Orders are somewhat pertinent: EO 13166 mandates all federal agencies to improve access to their federally conducted programs and activities by eligible persons with limited English proficiency. This order has particular relevance with regard to the NEPA mandate to foster public involvement in the environmental review process. It stipulates that accommodations must be made for persons with limited English proficiency who wish to participate in public environmental reviews. 311

OCR for page 299
EO 13045 mandates all federal agencies to identify and assess environmental health risks and safety risks that may disproportionately affect children. This has the effect of making children a protected population with regard to environmental justice issues. LEGAL ISSUES Whereas the previous section of this appendix summarizes the major statutory and federal policy guidelines that are the basis for environmental justice, this section describes how those statutes and guidelines address particular issues, such as which population groups are considered "protected" and how to define a "disproportionate" impact. Population groups to be considered. EO 12898 protects both minority populations and low- income populations. Title VI protects minorities against discrimination, but does not apply to low-income groups. Other statutes protect the elderly, the disabled, and women against discrimination, but these groups are not protected under EO 12898. Table A-1 summarizes the sources of protection for each of these groups. Table A-1. Groups Protected Protected by specific statute and by Protected by specific statute but not by EO 12898 EO 12898 Minorities (Title VI) Elderly (Age Discrimination Act) Disabled (ADA, Rehabilitation Act) Women (Federal Highway Act) Not protected by specific statute but Not protected by specific statute and not protected by EO 12898 protected by EO 12898 Low-income persons Other socioeconomic groups Types of adverse effects to be considered. Under EO 12898, the U.S. DOT requires consideration of all reasonably foreseeable social, economic, and environmental effects on minority populations and low-income populations. Thus, essentially every impact category considered as part of the NEPA process--including secondary and cumulative impacts--needs to be considered in an environmental justice analysis. Measuring "proportionate." There are no established legal standards or guidance for deciding how to measure the proportionality of the distribution of benefits and burdens for a plan or project. Measuring the proportionality of benefits and burdens raises numerous conceptual and practical problems. How is a benefit or a burden defined? Over what time period should benefits and burdens be evaluated? How should the sum total of benefits and burdens be measured? Is it even possible to calculate such a total? These questions must be answered to develop legally sound methods for assessing compliance with EO 12898. However, at present, there are no established legal standards or federal guidelines for practitioners to follow in answering these questions. 312

OCR for page 299
Extent to which benefits should be considered. The U.S. DOT requires that benefits be considered in three distinct ways. First, a denial, reduction, or significant delay in the receipt of benefits constitutes an adverse effect for purposes of EO 12898 and therefore should be taken into account in determining adverse impacts. Second, off-setting benefits should be considered when evaluating the adverse effects on a protected population. Finally, the overall distribution of benefits also must be considered. Standards for approving actions with disproportionate effects. In early 2000, FHWA and the Federal Transit Administration (FTA) issued guidance stating that one of the three basic principles of environmental justice was to ensure that low-income and minority groups receive a proportionate share of the benefits of transportation investments. Current FHWA guidance, however, focuses on enhanced public involvement and an analysis of the distribution of benefits and impacts. The guidance goes on to state that there is no presumed distribution of resources to sustain compliance with the environmental justice provisions. This more recent guidance confirms that there may be circumstances in which actions with disproportionate benefits or disproportionate burdens can be approved. The U.S. DOT and FHWA orders do establish standards for approving actions that are found to have a disproportionate impact on minority populations or low-income populations. These orders establish two distinct standards: one for groups that are protected only under EO 12898 and one for groups that are protected both under EO 12898 and under Title VI. (The orders do not address the elderly, the disabled, or women.) The standards set forth in the U.S. DOT and FHWA orders are summarized in Table A-2. ELEMENTS OF A LEGALLY SUFFICIENT ENVIRONMENTAL JUSTICE ASSESSMENT The previous sections of this appendix present pertinent environmental justice regulations and guidance. Based on the language and intent of these regulations and guidance, it is important to address the following question: From a regulatory and policy perspective, what is the standard of legal sufficiency for environmental justice assessment of transportation policies, programs, and projects? Although this question cannot be fully answered, some guidance is provided below. The legal and regulatory basis for environmental justice is, at best, not fully tested. As could be expected, statutes, regulations, and case law speak more to the process of environmental justice assessment than to the content of assessments. The following basic process is suggested by environmental justice statutes, regulations, and guidance: Transportation planning organizations must carry out their policies, programs, and projects in a manner that is free of intentional discrimination and highly sensitive to the possibility of discriminatory outcomes. Legal requirements against intentional discrimination are clear, whereas the limitation against discriminatory effects is not as clearly defined. 313

OCR for page 299
In addressing potential discriminatory effects, practitioners must involve the public freely and openly in the decision making process and make certain that the views of protected populations are adequately represented. Under the disparate impact standard, a plaintiff must identify specific discriminatory actions of permitting agencies, show disproportionate inclusion or exclusion of a protected population, and provide causal connection between the alleged discriminatory action and the disproportionate effect. The defendant bears the burden of rebutting the claim or providing justification. It is in the permitting agency's best interest to identify such potential claims early in the planning process and involve the public in resolving the issues. Then, if litigation results, the permitting agency will be prepared with rebuttal or justification information. Table A-2. Standards for approving actions with disproportionate effects Disproportionate effects on groups Disproportionate effects on groups protected only by Title VI protected by EO 12898 (Minority populations) (Low-income and minority populations) May be approved if: May be approved if: 1) A substantial overall need for the program, 1) Avoidance alternatives are not practicable; and policy, or activity exists, based on the overall 2) Additional mitigation measures also are not public interest; and practicable. 2) Alternatives that would have less adverse effects Practicability assessment will take into account on protected populations (and that still satisfy social, economic (including costs) and the need identified in 1) above), either: environmental effects of avoiding or mitigating the a) Would have other adverse social, economic, adverse effects. environmental or human health impacts that are more severe or b) Would involve increased costs of extraordinary magnitude. As part of that process, an environmental justice assessment should satisfy at least the following minimum content requirements: Most statutes, such as the Civil Rights Act of 1964, protect against discrimination based on race, class, or national origin. Executive Order 12898 extends many of these same protections to low-income populations. The EO also focuses on disproportionately high and adverse environmental and human health effects. One could thus argue that greater weight should be given to identifying potential adverse effects to minority populations because such issues have the greatest legal protections. It may be in the best interest of transportation planning agencies, however, to address both beneficial and adverse effects to all protected populations. 314

OCR for page 299
Federal law requires that the economic, social, and environmental effects of a proposed project be fully considered in the development of that project. An environmental justice assessment therefore should address the adverse economic, social, and environmental effects on protected populations. Department of Transportation and FHWA guidance extend this adverse-effects-assessment requirement to include beneficial effects. Environmental justice assessments should be grounded in agency-wide strategies and programs to address Title VI and related concerns, and they should work to reach the goals of these programs. An environmental justice assessment should include a demographic profile of the populations potentially affected by the program, policy, or project in question. The environmental justice assessment should seek to identify the needs of the minority and low-income populations potentially affected by the program, policy, or project in question. The assessment should use public involvement both to identify potentially affected protected populations and to obtain input on the perceived effects of the program, policy, or project. The environmental justice assessment should be an analytical tool for identifying the benefits and burdens of the proposed program, policy, or project to protected populations. If undue burdens are identified, the assessment should take these into account and seek to minimize or eliminate them through planning modifications, design changes, or implementation of mitigation measures. This is not to say that an environmental justice assessment conducted according to these requirements meets the standard of best practice. Rather, an assessment that meets these technical criteria and has been conducted as part of the process outlined above, could be expected to meet legal sufficiency tests if based on suitable information and methods. BEST PRACTICE VERSUS LEGAL SUFFICIENCY The ultimate objective of any transportation project is to promote the public good. Highways, secondary roads, bridges, and intersections are designed to provide social and economic benefits to the communities they serve. To whatever extent a transportation project disrupts a community or decreases the quality of life, those purposes are defeated. The standard of best practice is whether or not an environmental justice assessment is an integral part of the planning process and whether or not it provides insight to decision-makers, protected populations, and the general public as to how best to apply limited transportation resources while balancing social, economic, and environmental goals. 315

OCR for page 299
RESOURCES 1) http://www.epa.gov/fedsite/eo12898.htm. This Web site contains the full text of the Executive Order 12898 on Environmental Justice. It is the executive order signed by President Clinton on February 11, 1994. 2) http://www.fhwa.dot.gov/environment/ej2.htm. This Web site contains the Federal Highway Administration's comprehensive listing of environmental justice and transportation resources, rules, policies, publications, and training opportunities. 3) http://www.fhwa.dot.gov/environment/ejustice/facts/index.htm. This Web site provides an overview of the legal aspects of environmental justice legislation. 4) http://www.epa.gov/compliance/. U.S. Environmental Protection Agency. "Environmental Justice." U.S. Environmental Protection Agency. REFERENCES Burbank, C..J., and C. Adams. 2000. "Memorandum to FHWA Division Administrators and FTA Regional Administrators on Status of Environmental Justice Activities." (January 19). Washington, DC: Federal Highway Administration and Federal Transit Administration. Cambridge Systematics, Inc. 2002. Technical Methods to Support Analysis of Environmental Justice Issues. Final report of project NCHRP Project 8-36(11). Transportation Research Board, National Research Council. Washington, DC: National Academy Press. Civil Rights Act of 1964, Public Law 88352, 42 U.S. Code, Section 2000d. Council on Environmental Quality. 1997. "Environmental Justice Guidance Under the National Environmental Policy Act." Washington, DC: Executive Office of the President. Available at: http://ceq.eh.doe.gov/nepa/regs/ej/justice.pdf. Federal-Aid Highway Act of 1970, 23 U.S. Code 109(h), December 31, 1970. Federal Highway Administration. 1998. "FHWA Actions to Address Environmental Justice in Minority populations and Low-Income Populations." Order 6640.23. Washington, DC: FHWA. Federal Highway Administration. 1987. "Guidance for Preparing and Processing Environmental and Section 4(f) Documents." Technical Advisory T 6640.8A, (October 30). Washington, DC: FHWA. Forkenbrock, David J., and Glen E. Weisbrod. 2001. Guidebook for Assessing the Social and Economic Effects of Transportation Projects. NCHRP Report 456. Transportation Research Board, National Research Council. Washington, DC: National Academy Press. Also available at: http://trb.org/trb/publications/nchrp/nchrp_rpt_456-a.pdf. National Environmental Policy Act of 1969, Public Law 91190, 42 U.S. Code, 43214347, January 1, 1970, as amended by Public Law 9452, July 3, 1975, and Public Law 9483, August 9, 1975. 316

OCR for page 299
President, Proclamation. 1994. "Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations." Executive Order 12898. Federal Register, Vol. 59, No. 32 (February 16), pp. 76297633. Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970. 42 U.S.C 4601 as amended by the Surface Transportation and Uniform Relocation Assistance Act of 1987. U.S. Department of Transportation. 1997. "U.S. Department of Transportation Actions to Address Environmental Justice in Minority and Low-Income Populations." Order 5610.2. Federal Register, Vol. 62, No. 72 (April 15), pp. 1837718381. Wykle, Kenneth R., and Gordon J. Linton. 1999. Memorandum to FHWA Division Administrators and FTA Regional Administrators on Implementing Title VI Requirements in Metropolitan and Statewide Planning. TOA1/HEPH1 (October 7). Washington, DC: Federal Highway Administration and Federal Transit Administration. 317