Transit and Environmental Justice
In 2012, in light of President Obama’s commitment to ensure that environmental justice (EJ) principles are an integral part of all federal programs, policies, and activities, the Department of Transportation (DOT) revised its agency rules for incorporating EJ concerns into existing federal transportation planning and review processes.<ref>Notice, DOT Final Environmental Justice Strategy, 77 FR 18879, March 28, 2012; DOT Updated EJ Order 5610.2(a), Notice, 77 FR 27534, May 10, 2012).</ref> The original rules came in response to President Clinton’s Executive Order 12898 of 13 February 1994 requiring federal agencies to make environmental justice part of their 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.”
The DOT defines a disproportionately high and adverse effect as one that “(1) is predominately borne by a minority population and/or a low-income population, or (2) will be suffered by the minority population and/or low-income population and is appreciably more severe or greater in magnitude than the adverse effect that will be suffered by the non-minority population and/or non-low-income population.”<ref>DOT Order 5610.2(a), Appendix, ¶ 1.g.</ref> Adverse effects refers to human health, environmental, social and economic impacts which can include “destruction or disruption of community cohesion or a community’s economic vitality; destruction or disruption of the availability of public or private facilities and services; . . . exclusion or separation of minority or low-income individuals within a given community or from the broader community; and the denial of, reduction in, or significant delay in the receipt of, benefits or DOT programs, policies or activities.”<ref>Id. ¶ 1.f.</ref>
New Federal Transit Administration (FTA) policy guidance documents address EJ compliance. FTA Circular 4703.1, which provides recipients with a distinct framework to assist transit agencies as they integrate EJ principles into their public transportation planning and decision-making, addresses environmental justice concerns with recommendations for how state DOT’s, MPOs, and transit providers can (1) engage both minority and low income populations in the transportation decision-making process, (2) determine whether they would be subjected to disproportionately high and adverse health or environmental effects of a project, policy or activity, and (3) avoid, minimize, or mitigate these effects.
The EJ process is related to though distinct from civil rights compliance required by Title VI and DOT regulations. The EJ analysis alone will not satisfy Title VI requirements which apply to all activities of Federal recipients, not solely those which may have disproportionately high and adverse human health or environmental effects on EJ populations. Conversely, a Title VI analysis will not necessarily satisfy environmental justice requirements, given that low-income populations are not a protected class under the statute Title VI.
Note that although there is an administrative distinction between the EJ analysis conducted as part of NEPA reviews and the required Title VI analysis, the impacts on both low income and minority populations from transit service and fare changes are governed by the FTA's Title VI Circular 4702.1B which ensures that transit providers meet their nondiscrimination Title VI obligations and that the agency achieves the overarching objective of fair distribution of the adverse impacts of, or burdens associated with, its transit programs, policies, and activities.
The FTA reviews EJ analyses prepared under NEPA and monitors recipients’ EJ efforts through its oversight reviews, triennial reviews, planning certification reviews, and state management reviews. The Department’s environmental justice guidelines reflect administrative policy and are not enforceable in court, however, the DOT is committed to assuring that any program, policy, or activity that will have a disproportionately high and adverse effect on minority or low-income populations, only be carried out if further mitigation measures or alternatives that would reduce these effects are not practicable. For those that affect only low-income populations, transit providers are encouraged to take steps to avoid, minimize or mitigate these burdens where practicable, and should identify available alternatives, however failure to do so does not violate Title VI.<ref>FTA Circular C 4702.1B, Ch. 4, ¶ 7.</ref>
FTA Circular 4703.1, Environmental Justice Policy Guidance for Federal Transit Administration Recipients, effective August 15, 2012 (77 FR 42077, July 17, 2012).
FTA Circular 4702.1B, Title VI Requirements and Guidelines for Federal Transit Administration Recipients, effective October 1, 2012 (77 FR 52116, August 28, 2012).