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9 adverse effect on minority and low-income riders."71 A result the agency had posted notifications in prominent recipient must monitor its transit service in its service areas and on the agency's Web site. area and "compare the level and quality of service pro- A second agency stated in part that the vided to predominately minority areas with service pro- circular helped clarify some questions we had about Title vided in other areas to ensure...equitable service."72 The VI implementation, and it made some issues make better circular provides for and describes procedures for moni- sense. Some of the improvements in our Title VI imple- toring service: a level of service methodology, a quality mentation which we adopted post2007 FTA Circular in- of service methodology, and a "Title VI Analysis of Cus- clude placing an electronic copy of our Title VI complaint tomer Surveys."73 A recipient also has the option of de- procedures onto our agency's webpage; we adopted this veloping its own alternative to monitor transit service.74 improvement after learning about such implementation options from a recent FTA Civil Rights workshop for the A recipient is required to document its compliance 2007 Circular that we attended. with the program-specific requirements in Sections 1 and 2 of Chapter V, as well as those in Sections 1 A third response was that the circular "answers through 7 of Chapter IV.75 A recipient must provide a some questions[] but does not adequately address copy of its demographic analysis, system-wide service changes to fare media types and availability." standards and system-wide service policies, equity evaluation of any significant service changes and fare F. Application of Principles of Environmental changes since its last submission, level of service moni- Justice to Avoid, Minimize, or Mitigate toring, quality of service monitoring, demographic Disproportionately High and Adverse Human analysis of customer surveys, or locally developed moni- Health and Environmental Effects on Low-Income 76 toring procedures conducted since the last submission. Populations Finally, a recipient may "implement a fare increase or The consideration of low-income populations, defined major service reduction that would have disproportion- hereafter, in environmental justice is not a new re- ately high and adverse effects" if the recipient is able to quirement.79 The principles of environmental justice demonstrate "that the action meets a substantial need include seeking to avoid, minimize, or mitigate "dispro- that is in the public interest and that alternatives portionately high and adverse human health and envi- would have more severe adverse effects than the pre- ronmental effects, including social and economic effects, ferred alternative."77 on minority populations and low-income populations,"80 and to ensure their participation in regard to actions of 3. Transit Agencies' Response to the Question of federal agencies or their recipients affecting minority Whether the 2007 FTA Title VI Circular Resolves Any and low-income populations.81 The 2007 FTA Circular Issues Arising in Connection with Compliance with Title defines the term environmental justice to "[m]ean an VI action taken by DOT, FTA, or a recipient or subrecipient Transit agencies were asked in the survey conducted of FTA funding to identify and address adverse and for this digest whether the FTA Title VI Circular either disproportionate effects of its policies, programs, or ac- resolves any questions that have arisen regarding com- tivities on minority and/or low-income populations, con- pliance with Title VI in earlier proceedings of which an sistent with Executive Order 12898 and the DOT Order agency is aware or, alternatively, raises any new issues. 5610.2 on Environmental Justice"82 (emphasis added). Although 54 agencies replied that the circular neither Although there is no specific federal statute applica- resolved any issues nor raised any new issues, 6 agen- ble to transit agencies regarding disparate impact on cies indicated that the circular either did resolve issues 78 or raised new issues. Only three agencies' responses were more specific. One agency stated that the circular clarified the low- 79 An Overview of Transportation and Environmental Jus- income population component and notification require- tice 2, available at ments that are discussed in Section II.G, infra, and as a ej2000.htm (Last visited Sept. 9, 2010), hereinafter cited as "Overview of Transportation and Environmental Justice." 80 Id. 71 Id. 4(a)(4). 81 Id. See also David Monsma, Equal Rights, Governance, 72 Id. at ch. V-7 5. and the Environment: Integrating Environmental Justice Prin- 73 Id. at ch. V-7V-8. ciples in Corporate Social Responsibility, 33 ECOLOGY L.Q. 443, 74 444 (2006), hereinafter cited as "Monsma," Id. at ch. V-8 5(d). 75 Id. at ch. V-9 6. CE_AND_THE_ENVIRONMENT.pdf (Last visited Sept. 9, 76 Id. 6(a)(1)(4). 2010). 77 Id. at ch. V-6 4(a)(4). 82 FTA Title VI Circular, 78 Four agencies did not respond to the question. circulars/leg_reg_5956.html, at ch. II-1 6(i).

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10 low-income populations,83 Section 602 of Title VI re- tions and low-income populations...."92 A recipient's quires federal agencies and departments to give effect submission each 3 years must include a summary of to Section 2000d "by issuing rules, regulations, or or- "public outreach and ensure that mi- ders of general applicability...consistent with [the] nority and low-income people had meaningful access" to achievement of the objectives of the statute...."84 Thus, FTA activities.93 the consideration of the effect of federal actions on low- Chapter V of the circular, applicable to large urban- income populations is consistent with Title VI and Sec- ized areas, requires that when evaluating service or tion 602. making fare changes, recipients must evaluate "the Although Title VI does not specifically prohibit dis- effects of the proposed fare or service change on minor- crimination against low-income persons or populations, ity and low-income populations";94"[a]ssess the alterna- the USDOT order refers to Title VI;85 affirms that "[i]t is 95 tives available for people affected"; and describe ac- DOT policy to actively administer and monitor its op- tions proposed to "minimize, mitigate, or offset erations and decision making to assure that nondis- effects...on minority and low-income populations."96 A crimination is an integral part of its programs, policies, recipient must "[d]etermine which, if any of the propos- and activities;"86 and mandates that the "income level" als under consideration would have a disproportion- of a population served or affected "in implementing ately high and adverse effect on minority and low- these requirements...should be obtained where rele- income riders."97 As stated, the circular allows recipi- 87 vant, appropriate and practical...." ents to develop a local evaluation procedure.98 In Chap- A low-income person is one "whose median house- ter V of the circular, the FTA recommends that if a re- hold income is at or below the Department of Health cipient conducts a survey on customer demographics and Human Services poverty guidelines."88 A "Low- and travel patterns, information should be collected on 99 Income Population" is "any readily identifiable group of riders' income or income range. low-income persons who live in geographic prox- In sum, federal law requires recipients of federal 89 imity...." funds such as transit agencies to avoid, minimize, or The term "adverse effects," inter alia, mitigate the disparate impact of their decisions and means the totality of significant individual or cumulative activities on low-income populations.100 human health or environmental effects, including interre- lated social and economic effects, which may include, but are not limited to...[the] exclusion or separation of minor- ity or low-income individuals within a given community or from the broader community; and the denial of, reduc- tion in, or significant delay in the receipt of, benefits of 90 DOT programs, policies, or activities. Low-income populations are protected from pro- grams, policies, or activities that have a disproportion- ately high and adverse effect on them as further defined in the FTA circular.91 One of the purposes of the FTA circular is to aid re- cipients in appropriately identifying and addressing 92 FTA Title VI Circular, "disproportionately high and adverse human health and, at ch. environmental effects, including social and economic II-1 1(b). effects of programs and activities on minority popula- 93 Id. at ch. IV-3 7(a)(1). 94 Id. at ch. V-6 4(a)(1). 95 Id. 4(a)(2). 96 83 Monsma, at 444, 44647 (stating that incorporates envi- Id. 4(a)(3). 97 ronmental justice remedies) (See id. n.6, citing Daniel Kevin, Id. 4(a)(4). `Environmental Racism' and Locally Undesirable Land Uses: A 98 Id. 4(b). Critique of Environmental Justice Theories and Remedies, 8 99 Id. at ch. V-2 (1)(b)(7). VILL. ENVTL. L.J. 121, 130 (1997); See id. 447, n.21, citing 100 See Executive Order 12898, 59 Fed. Reg. 7629 1-101 Richard J. Lazarus, Civil Rights in the New Decade: Highways (Feb. 11, 1994), 1-101 (stating that "each Federal agency and Bi-ways for Environmental Justice, 31 CUMB. L. REV. 569, shall make achieving environmental justice part of its mission 582 (2001)). 84 by identifying and addressing, as appropriate, disproportion- 42 U.S.C. 2000d-1 (2009). ately high and adverse human health or environmental effects 85 DOT Order, 62 Fed. Reg. at 18439 7(a). of its programs, policies, and activities on minority populations 86 Id. 7(b). and low-income populations in the United States," as well as 87 Id. its territories and possessions, the District of Columbia, the 88 Commonwealth of Puerto Rico, and the Commonwealth of the Id. at 18380 (App.) 1(b). 89 Northern Mariana Islands); DOT Order, 62 Fed. Reg. at 18380 Id. 1(d). 7(c) (noting the federal requirement to "identify and avoid 90 See id. 1(f). discrimination and avoid disproportionately high and adverse 91 See id. (g)(1) and (2). effects on minority populations and low-income populations").