Environmental Justice and Toll Roads

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The presentation will include current guidance for TxDOT projects and state of the practice and research implications.

Speakers:

Sarah Stroman - Currently serving as Community Impacts Specialist in TxDOTs Environmental Affairs Division and Project Director for TxDOT Research Project, 0-6544, Appraisal of Available Analytical Tools to Assess Environmental Justice Impacts of Toll Road Projects. Sarah also served as a member of the Project Monitoring Committee for TxDOT Research Project 0-5208, Identifying, Measuring and Mitigating Environmental Justice Impacts of Toll Roads.

Brandy Huston - Member of the Programs Management Section in TxDOTs Environmental Affairs Division. Brandy has also served as an Environmental Specialist in TxDOTs Bryan District and has worked with FHWA to develop Joint Guidance for Project and Network Level Environmental Justice, Regional Network Land Use and Air Quality Analyses for Toll Roads.

Jolanda Prozzi- Assistant Director of Freight, Economics, and the Environment at the Center for Transportation Research at the University Texas at Austin and is the Research Supervisor for TxDOT Research Project, 0-6544, Appraisal of Available Analytical Tools to Assess Environmental Justice Impacts of Toll Road Projects. Jolanda also managed the large team of staff and research assistants that delivered TxDOT Research Project 0-5208 and provided technical guidance, liaised with TxDOT, conceptualized and reviewed all project deliverables, and made numerous presentations of the work in both conference and academic settings.

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  • Obviously, in this forum everyone knows that transportation systems play an essential role advancing our economy, safety, and quality of life. Every hour of every day, transportation facilities carry people and goods, providing mobility to Texas residents, our visitors, and all the folks doing business in our state. As a service, transportation touches the lives of almost everyone. It has far-reaching benefits, and sometimes, far-reaching negative consequences that are not our goal. Changes to transportation systems can have profound economic, social, and environmental impacts on communities. As you have probably heard too much about recently, we’re out of money to build and maintain our roads in Texas. Tolling has been presented as a solution to some of our problems, but tolling has also generated a lot of controversy in certain parts of the state for various reasons. Today we want to talk to you about the issue of tolling as a potential impact to environmental justice populations. I’m going to give you a short—and I hope very quick—introduction to Title VI, Environmental Justice, and why we look at tolling as an impact under the National Environmental Policy Act. Brandy is going to talk to you about what we’re doing now under joint guidance with FHWA, and Jolanda is going to talk to you about some things we’re looking at for the future.
  • Long before environmental justice became a prominent regulatory issue, transportation played an important role in Civil Rights struggles. More than 40 years ago, Martin Luther King, Jr. recognized that transportation is an issue that lies at the intersection of civil rights, economics, and the environment, and this is what Mr. King said: “ When you go beyond a relatively simple though serious problem such as police racism… you begin to get into all the complexities of the modern American economy. Urban transit systems in most American cities, for example, have become genuine civil rights issues—and a valid one—because the layout of rapid-transit systems determines the accessibility of jobs to the black community. If transportation systems in American cities could be laid out so as to provide an opportunity for poor people to get meaningful employment, then they could begin to move into the mainstream of American life.” Some of you may have first heard the term “environmental justice” in the 1980s in relation to litigation and Title VI complaints. Most of those concerns related to the siting of hazardous facilities --examples are garbage dumps, tank farms, chemical plants, etc.-- in areas where the population was mostly minority or low income.
  • Title VI of the 1964 Civil Rights Act provides one of the principle legal underpinnings for environmental justice. It states that “No person . . . shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” Title VI prohibits recipients of Federal funds from actions that reflect “intentional discrimination” or that exhibit “adverse disparate impact discrimination” on the basis of race, ethnicity or national origin. I’ll talk a little more about disparate impacts in a second. The National Environmental Policy Act of 1969 ( NEPA ) stressed the importance of providing for "all Americans safe, healthful, productive, and esthetically pleasing surroundings", and provided a requirement for taking a "systematic, interdisciplinary approach" to aid in considering environmental and community factors in decisionmaking. The Civil Rights Restoration Act of 1987 amended Title VI so that recipients of federal aid must comply with the non-discriminatory requirements in all their activities, not just the programs and activities that directly receive Federal support. That is, a government agencies that receive any federal funds must avoid discriminatory impacts not only when setting policy for federally funded programs, but also for programs that are entirely state or locally funded. If I am agency accepting one dollar of federal money for any purpose, I must ensure that every other activity I undertake complies with Title VI. Later statutes, and I won’t go into those today, prohibit discrimination on the basis of sex, religion, or disability. Just keep in mind that they’re out there. Environmental justice was first identified as a national policy in 1994 when President Clinton signed E.O. 12898. This order requires that each federal agency shall, to the greatest extent allowed by law, administer and implement its programs, policies, and activities that affect human health or the environment so as to identify and avoid “disproportionately high and adverse” effects on minority and low-income populations. E.O. 12898 thus applies to a wider population than Title VI, which does not cover low-income non-minority populations. You should note that the Order itself does not create any new legal rights and is not enforceable in court. However, it is intended to focus federal agencies on the complying with existing regulations, such as Title VI and NEPA, that protect low-income and minority communities from discrimination and ensure their full participation. In April 1997, the U.S. Department of Transportation issued the Order To Address Environmental Justice in Minority Populations and Low-Income Populations (DOT Order 5610.2). The Order states that DOT will not carry out any programs, policies or activities that will have a disproportionately high and adverse effect on minority populations or low-income populations unless “further mitigation measures or alternatives that would avoid or reduce the disproportionately high and adverse effect are not practicable.” The DOT order also suggests that “offsetting benefits” should be addressed when assessing effects on low-income and minority populations. In December 1998, the Federal Highway Administration issued FHWA Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (DOT Order 6640.23) that requires the FHWA to implement the principles of the DOT Order 5610.2 and E.O. 12898 by incorporating environmental justice principles in all FHWA programs, policies and activities. I’m focusing this introduction on FHWA, because they have been the lead federal agency for our toll projects.
  • Environmental justice is a public policy goal of promoting the fair treatment and meaningful involvement of all people in the decision-making for transportation. Satisfying this goal means ensuring that low-income and minority communities receive an equitable distribution of the benefits of transportation activities without suffering disproportionate adverse impacts. Public involvement is one of the vehicles which we use to both ensure participation and to determine when we are having an environmental impact. Environmental justice impacts are subjective and issues like tolling that may not be a concern in some areas of the state can be large concerns elsewhere. It is important to point out that FHWA’s Title VI Program actually includes an umbrella of laws, regulations and policies beyond just Title VI. While EO 12898 does not have the force of law, and while there have been court rulings limiting the enforcement of Title VI in certain cases, federal agencies can suspend participation—either their funding or their approval authority—when a recipient fails to comply with the agency’s programs and policies. If a project has any FHWA participation or approval, it must comply with all of FHWA policies, regardless of the funding source.
  • Achieving environmental justice requires both analytical techniques as well as the full and fair participation by all potentially affected communities in the transportation decision-making process. EJ analysis is essentially a risk assessment given all the factors (nature of the action, scope, intensity, environment, controversy, etc.). FHWA wants to know: is our analysis reasonable? How do we support our conclusions? What data did we use?
  • When we are looking at tolling and environmental justice, we need to remember what types of claims can result under Title VI.
  • NEPA established the definitions for “significant” and “adverse” for impact assessment purposes; these definitions are much narrower than interpretations of the same terms under civil rights law. Under civil rights law, the central question is whether a reasonable person would find the effects to be reasonable. Courts look for generally accepted standards to document claims of significant and adverse environmental impacts. From both the civil rights and the NEPA perspectives, determinations of adverse impact take into account pervasiveness, duration, frequency, magnitude, and severity of effects . A significant finding in any one of these characteristics may be sufficient to generate a civil rights challenge, especially if the disadvantaged community has historically borne environmental burdens of regional transportation projects but enjoyed few, if any, direct benefits. Low-income and minority communities almost always have more adverse baseline conditions. Such existing conditions must be identified and evaluated along with expected project-related effects. Impacts depend to a certain degree on the transportation needs and values of the community. For example, a project that diminishes the mobility of people with low incomes—many of whom have lower levels of mobility at the outset—has a considerably greater effect than does a reduction in mobility in a community of people with higher mobility. National Environmental Justice Advisory Council... Concept of Vulnerability : recognizes that disadvantaged, underserved and overburdened communities come to the table with preexisting deficits of both a physical and social nature that make effects more burdensome.
  • These are more factors to consider, I’m only going to talk about the last one today. When you are looking at the history of transportation funding in an area, it is possible that environmental justice neighborhoods may have received fewer infrastructure improvements than did more affluent, less ethically diverse areas. As a result there may be fewer express facilities in these areas than elsewhere in the same community. When projects are built in environmental justice areas, the EJ population bears the construction impacts (displacements, changes in community cohesion, changes in access, etc.) of these projects. If these projects are also tolled, the population could be bearing these physical impacts without being able to benefit from using the facility at the same rate as other drivers. We need to look at both the burdens and benefits for the EJ population.
  • We look at tolling as an impact for several reasons: Prima facie – pay to play. It costs money to drive on these lanes. User impact – the actual users of the project and those who fell the benefits and burdens of the toll lanes may reside beyond the boundaries of the immediate area of construction. Pricing – toll lanes are only faster because there reaches a point beyond which some people refuse to pay to use them. If the lanes don’t move any faster than the non-tolled options, people will not pay to use them. Lanes are kept free-flowing by raising the toll. In some cases prices are higher when the demand is higher, such as the rush hour commute. Folks who can pay the toll may arrive more reliably at work on time, have more time to spend with their families, etc. Traffic Diversion – folks may exit a road rather than pay the toll and cut through neighborhoods, increasing congestion on the non-tolled facilities or neighborhood streets. Difference in travel time – Collection Methodology – ECT often requires payment with a credit card. Low income and minority individuals hold credit cards at a lower rate than non-minority, non-low income individuals. If a discount is given for using a toll tag, those without credit cards may not get those discounts. There are often high fees associated with billing and those bills are often called “violation notices”. Revenue Use – toll roads have been very common in other areas of the country and have received less opposition. However, in many areas the tolls have been removed on projects once the construction expenses have been paid off. Our projects are generally keeping the toll to provide for maintenance or other projects needed in the area. If the money is going toward other projects, it raises the issue of where these projects are. Or they near the physical location of the project (where the construction impacts have been felt) or they farther away (where perhaps the majority of the users live)? Looking at whether or not there are any environmental justice impacts for a particular toll road is a complicated issue. NEPA requires that we disclose specifically what are the burdens and what are the benefits and who receives each. It requires that we take a hard look at the results of our actions and substantiate our determinations (whether there will be an impact or not, for example) with some type of data and analysis. Brandy is going to tell you about how we’re doing this now.
  • 2 types of analysis – project level and network level. When and why we look at both.
  • Mitch’s 3-legged stool Users and Options – Modeling data. Who uses it? How often? O&Ds? Other choices and how they compare. Accessibility Policies and Collection Methods – how do you pay, how difficult is it, what barriers exist, LEP, ease of getting and maintaining a tag, cost differences for those without tags, public transit and emergency services (maybe motorcycles and hybrids) Economic analysis – how expensive is it to use the road on a regular basis? What are the differences for low-income vs. average?
  • Still on a learning curve. Guidance is based on what we’ve learned so far and what we are able to do with the tools at hand. There are still questions about where to proceed….research!
  • Environmental Justice and Toll Roads

    1. 1. Title VI, Environmental Justice, and Texas Toll Roads
    2. 2. When you go beyond a relatively simple though serious problem such as police racism… you begin to get into all the complexities of the modern American economy. Urban transit systems in most American cities, for example, have become genuine civil rights issues—and a valid one—because the layout of rapid-transit systems determines the accessibility of jobs to the black community. If transportation systems in American cities could be laid out so as to provide an opportunity for poor people to get meaningful employment, then they could begin to move into the mainstream of American life. Martin Luther King, Jr.
    3. 3. Legal and Policy Framework for Environmental Justice <ul><li>Title VI of the Civil Rights Act of 1964 </li></ul><ul><li>National Environmental Policy Act of 1969 </li></ul><ul><li>Civil Rights Restoration Act of 1987 </li></ul><ul><li>Executive Order 12898 </li></ul><ul><li>DOT Order 5610.2 </li></ul><ul><li>DOT Order 6640.23 </li></ul>
    4. 4. FHWA’s Fundamental Principles <ul><li>There are three fundamental environmental justice principles: </li></ul><ul><ul><li>To avoid, minimize, or mitigate disproportionately high and adverse human health and environmental effects, including social and economic effects, on minority populations and low-income populations. </li></ul></ul><ul><ul><li>To ensure the full and fair participation by all potentially affected communities in the transportation decision-making process. </li></ul></ul><ul><ul><li>To prevent the denial of, reduction in, or significant delay in the receipt of benefits by minority and low-income populations. </li></ul></ul>
    5. 5. Simple EJ Analytical Framework <ul><li>Is an EJ Population Present? </li></ul><ul><li>Adequate public involvement efforts? </li></ul><ul><li>Disproportionately high and adverse impacts? </li></ul><ul><li>Avoidance and mitigation considered? </li></ul><ul><li>Equal treatment/benefits? </li></ul>
    6. 6. Disparate Treatment/Impact Under Title VI <ul><li>Disparate Treatment/Intentional Discrimination : Claims allege that similarly situated persons are treated differently because of their, race, color, national origin, sex, disability or national origin. </li></ul><ul><li>Disparate Impact or Effects Discrimination: Occurs when a recipient uses a facially neutral procedure, activity, practice, criteria, etc. that has a disproportionate impact on a protected group. </li></ul><ul><li>U.S. Dept. of Justice Title VI Legal Manual (January 2001) </li></ul>
    7. 7. Factors for Consideration in Assessing Impacts to EJ Communities <ul><li>Low-income and minority communities typically start with more adverse baseline conditions . Such existing conditions must be identified and evaluated along with expected project-related effects when analyzing adverse effects. </li></ul>
    8. 8. Factors for Consideration in Assessing Impacts to EJ Communities <ul><li>Limited or poor access to basic amenities/services such as health care, food markets, recreational facilities, etc. </li></ul><ul><li>Close proximity to noxious land uses and pollution sources. </li></ul><ul><li>Infrastructure Conditions : historic allocation of resources has resulted in inadequate infrastructure development and maintenance. Often overburdened or aged. </li></ul>
    9. 9. Tolling As An Impact <ul><li>Prima facie </li></ul><ul><li>User impact </li></ul><ul><li>Pricing strategies </li></ul><ul><li>Traffic diversion </li></ul><ul><li>Difference in travel time </li></ul><ul><li>Collection Methodology </li></ul><ul><li>Revenue use </li></ul>
    10. 10. Current Guidance <ul><li>FHWA and TxDOT Joint Guidance for Project and Network Level Environmental Justice, Regional Network Land Use, and Air Quality Analyses for Toll Roads </li></ul><ul><ul><li>April 23, 2009 </li></ul></ul><ul><ul><li>Incorporates </li></ul></ul><ul><ul><ul><li>“Guidance on Environmental Justice for Toll Roads” (March 2005) </li></ul></ul></ul><ul><ul><ul><li>FHWA comments/recommendations </li></ul></ul></ul><ul><ul><ul><li>Current practices </li></ul></ul></ul>
    11. 11. Projects and Networks
    12. 12. Major Elements of Analysis <ul><li>Users and Options </li></ul><ul><li>Accessibility, Policies and Collection Methods </li></ul><ul><li>Economic Analysis </li></ul>
    13. 13. Flexibility <ul><li>Many ways to address major elements </li></ul><ul><li>Variability in available information and model capabilities </li></ul><ul><li>Open to new ideas and suggestions </li></ul><ul><li>Coordination is key </li></ul>

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