Civil Rights Implications of the Allocation of Funds between Bus and Rail (2008)

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11 TABLE 2. NUMBER OF TITLE VI COMPLAINTS FILED WITH THE FTA BY YEAR YEAR NO. FILED 2000 1 2001 3 2002 0 2003 2 2004 1 2005 0 2006 1 200757 0 IV. TRANSIT AGENCIES’ STRATEGY AND DEFENSES TO TITLE VI DISPARATE-IMPACT CHALLENGES This section of the report discusses some of the informa- tion that was provided by transit providers in respond- ing to administrative complaints or challenges, begin- ning with a discussion of the variety of approaches taken in the transit providers’ responses.58 First, it appears that transit providers have focused on the complaint’s failure to show or allege any specific discriminatory intent or effect, the complaint’s failure to identify any discrimination, the absence of proof of any alleged disparity, and/or the complaint’s failure to prove a causal connection. Second, with respect to a change or reduction in level of service or alleged disparity in the existing level of service, transit providers have explained the basis for the agency’s decision; the adequacy of existing service or of new service; the provision, where applicable, of alternative service; or the need to reduce emissions as part of an emissions reduction program. Third, transit providers have shown that a decision was the result of years of study, that various options were considered, and that there were public hearings and public participation in the decision-making process. Fourth, transit providers have used statistics and demographic information to rebut the allegations. Fifth, transit providers have explained the sources of the transit provider’s funding; any statutory require- ments or restrictions that may pertain to its funding; and why there is a lack of funding, including a lack of federal funding or the effect of the loss of any subsidies. Sixth, transit providers have compared allocations of bus and rail funding and explained the reasoning for the allocations. Seventh, transit providers have provided an over- view of the transit provider’s operations and facilities, discussed critical capital replacement needs of bus and 57 As of Aug. 2007. 58 It may be noted that seven transit agencies stated that that they have a Web site where information on Tit. VI com- plaints is made available to the public. rail systems, and explained the different preventive maintenance requirements of bus and rail systems. Finally, transit providers have explained factors that were beyond its control, such as the effect of an election that resulted in discontinuance of service, federal objec- tions to options that were considered, and the necessity of cooperation with other governmental agencies, as well as other administrative obstacles or difficulties. Several of the agencies’ responses to Title VI com- plaints are worth discussing in more detail. In Leese v. Suburban Mobility Authority for Rapid Transit, FTA No. 2006-0238, SMART responded to the Title VI complaint, explaining that a significant source of its revenue was a property tax levied by the four counties to which SMART provides services. One of the areas served by the agency withdrew from the system, thereby causing the agency to reallocate limited re- sources. SMART conducted public hearings and made service changes in an attempt to ease the problems caused by the loss of revenue. The agency explained that it had added routes and altered existing routes in an effort to minimize the impact.59 In Washington Street Corridor Coalition v. Massa- chusetts Bay Transportation Authority, FTA No. 2001- 0177, MBTA responded to a Title VI complaint alleging discrimination by the agency based on a decision to em- ploy a modality other than light rail on a route previ- ously served by the elevated Orange Line that was dis- continued in 1988. MBTA provided a chronological report on the studies, public hearings, and unsuccessful attempts to secure federal funding for a light-rail sys- tem before the agency decided to construct a new rapid- transit line serviced by 60-ft articulated buses that would operate on compressed natural gas in dedicated rights-of-way. The response noted among other things that the solution chosen was sanctioned by local organi- zations, that the corridor in which the project is located has received a greater capital investment in rapid tran- sit than any other part of the metropolitan area, that the heaviest concentration of minority residents in the corridor are not located on the new line, that the popu- lation characteristics of the area are not markedly dif- ferent from the city as a whole, that the residents of the corridor favored surface transportation, and that mem- bers of the local community raised concerns regarding the alternative of providing light-rail service. Specifi- cally, some residents were concerned that a light-rail line would divide the community geographically and that construction of the line would cause the loss of buildings and businesses. MBTA noted more than once in its response to the Title VI complaint that USDOT’s position was that light rail was not a reasonably cost-effective solution and, moreover, a light-rail proposal did not meet USDOT’s cost-effective guidelines or satisfy certain environ- mental issues. (An electric-bus option that would have 59 See Leese, Response by Suburban Mobility Authority for Rapid Transit, dated Nov. 30, 2006 (quotation marks omitted in the discussion of SMART’s response).

12 been pursued entirely with state funds was opposed by various community groups because of the electric wires that would have to be erected.) Because MBTA deter- mined that the line to be provided should be part of a continuous line and afford service to a number of areas including the airport, MBTA decided that the optimum type of vehicle for such a route was a 60-ft articulated bus that operates on low-emission natural gas.60 In West Harlem Environmental Action v. Metropoli- tan Transportation Agency, FTA No. 2001-0062, it was alleged that MTA and NYC Transit had discriminated against African-American and Latino residents of Northern Manhattan in the development and operation of bus parking lots and bus depots and that a dispropor- tionately high number of the authority’s bus depots were located in nonwhite neighborhoods. MTA and NYC Transit filed a detailed response and argument.61 MTA’s and NYC Transit’s response noted that most of the depots in the area in question had been con- structed more than 50 years ago and that over the years the demographic patterns had changed. The response explained that the number of depots located in white, non-Hispanic neighborhoods citywide closely approxi- mated the city’s total white, non-Hispanic population under the 1990 Census. After providing a detailed over- view of the authority’s bus and subway operations throughout the entire service area, rather than just Northern Manhattan, the authority explained some of the considerations in the location of bus depots and parking lots, including the need to keep and maintain buses close to the routes they service so as to maximize bus service. The response also pointed out that the complaint’s demographic profiles were based erroneously on zip codes rather than “census tracts.” MTA and NYC Tran- sit contended in their response that the method of using zip codes meant that substantially larger areas were included, thereby encompassing a larger nonwhite population. The method of using census-tract data al- lowed the authority to consider an area within a 0.25- mi radius of each bus depot in the city. The transporta- tion authority pointed out that the use of the census- tract method resulted in five, not six, of the eight Man- hattan depots being located in predominately nonwhite neighborhoods. The respondents also argued that the demographics of the entire area had to be considered because they operated a citywide system. A demographic analysis of the city as a whole using the census-tract method showed that eight of 20 depots were located in pre- dominately white, non-Hispanic neighborhoods. Also, 60 Washington Street Corridor Coalition, “Response of the Massachusetts Bay Transportation Authority to the Washing- ton Street Corridor Coalition’s ‘Title VI’ Complaint’ (undated) (quotation marks omitted in the discussion of MBTA’s re- sponse). 61 West Harlem Environmental Action, Respondents’ Sub- mission in Opposition to the Complaint, dated March 5, 2001 (quotation marks omitted in the discussion of MTA’s and NYC Transit’s response). the MTA and NYC Transit showed that, since the 1990 Census, the Census Bureau’s Population Estimates Program had indicated that the percentage of New York City’s total white, non-Hispanic population had declined from approximately 43 percent to 37 percent; thus, the percentage of bus depots located in minority neighbor- hoods was slightly low, proportionately, when compared to the city’s current nonwhite population. MTA and NYC Transit explained that their policies on facilities and services are driven by race-neutral planning and that the planning framework consisted of four components: strategic context,62 functional con- text,63 financial context,64 and commu- nity/environmental context.65 There was emphasis as well in the response on MTA’s and NYC Transit’s sig- nificant commitment and capital investments and ex- penditures to reduce air emissions from the bus fleet. In Piras and Williams v. Metropolitan Transporta- tion Commission, FTA No. 2000-0315, MTC’s response focused primarily on sources of funds and how they were allocated between bus and rail. MTC provided a detailed comparison of its operating allocations to AC Transit and BART, discussing, first, state and local op- erating funding that included Transportation Develop- ment Act (TDA) funds, State Transportation Assistance (STA) funds, and AB 1107 funds.66 As for TDA funds, the MTC showed that the allocation of TDA funds for fiscal years (FYs) 1992–2001 were $373.8 million to AC Transit and $6.5 million to BART. MTC pointed out, for example, that with respect to STA funds the MTC had exercised its discretion to provide a significant benefit in funding to AC Transit. Thus, for the same FYs 1992– 2001, the MTC allocation to AC Transit was $72.1 mil- lion and the allocation for BART was $9.8 million. As for the AB 1107 funds, by law 75 percent of the funds must go to BART; however, according to MTC, the re- 62 The response’s discussion of the strategic context centered on the transit system’s rolling 20-year capital needs assess- ment program and 5-year capital program plans. 63 The response’s discussion of the functional context fo- cused on three primary planning factors that affected a bus depot’s location and design: bus route and fleet assignments, traffic circulation patterns, and maintenance area size and location. 64 The response’s discussion of the financial context dis- cussed how most Manhattan properties were unsuitable for bus depot use because of expense, zoning, over-development, distance from bus routes, inappropriately sized street grids, and congestion. 65 The MTA and NYC Transit stressed that because many of the bus depot projects involve improvement of existing facili- ties, the projects do not require the preparation of formal envi- ronmental assessments; however, the respondents stated that even if a project is exempt, the usual practice is to review a project’s potential environmental impacts. 66 AB 1107 Funds are funds derived from legislation spon- sored by MTC in 1977 to make permanent a ½ cent general sales tax originally imposed to institute BART service in three counties.