In August, 2007, a bridge on an interstate highway came crashing down
during rush hour in Minneapolis. Commentators seized upon the disaster
as a sign of the need for more government spending on infrastructure.
But conversations about “infrastructure” routinely focus on building,
maintaining and expanding highways, treating public transit as an
afterthought at best. For decades, the federal government (and many
state governments) have lavished billions upon billions of dollars on
highway construction, while funding for mass transit lags far behind.
The neglect of transit is discriminatory: The 2000 Census showed that nearly one in four African Americans, and large percentages of Latinos and Asians, live in households without vehicles available, compared to only 7% of non-Hispanic whites. Communities of color are far more likely than whites to depend on public transportation to get to work.
Governmental disregard of transit strands low-income persons and communities of color, often in inner cities though also in rural areas, while job growth, economic development and housing migrate to wealthier, whiter suburbs. At the same time, federal mandates that require regional planning frequently limit the influence of central cities in transportation and regional development.
The precise structures vary from community to community. In some cities, activists have challenged the disproportionate amount of money pumped into modes of transit used by better-off, whiter communities, while transit modes used by inner-city residents are starved. The most well-known example was the case in which Los Angeles bus riders challenged how much money was going to the rail system.
In Milwaukee, a majority-minority city surrounded by a ring of overwhelmingly white suburbs, survival of the transit system is at issue. There are clear disparities in auto ownership and drivers licenses between the predominantly low-income and minority residents of Milwaukee’s central city and the predominantly white residents of suburban counties. Census data confirm that Milwaukee residents, especially those living in the central city, remain far more likely to rely on public transportation than do suburban residents. Yet while transit funding declines and the existing (inadequate) bus system is subjected to frequent service cuts and fare increases, the state (with the avid support of suburban legislators) wants to spend more than $6.25 billion on highway reconstruction and widening. Meanwhile, many of the negative effects—including high levels of ozone pollution, suburban sprawl that leaves inner-city neighborhoods behind, the refusal to provide affordable housing in the suburbs, and the lack of transit connections to jobs in developing areas—hurt city residents.
Judicial rollbacks in the application of civil rights laws, especially Title VI of the 1964 Civil Rights Act, increase the importance of taking on these issues politically, not just in the courts. In Milwaukee, we are using Title VI and federal Orders on Environmental Justice to advocate for substantive change—such as more equity for transit projects and more affordable housing in the suburbs—in the plans that are being developed. We worked with community groups to organize a challenge to our federally-designated Metropolitan Planning Organization (MPO) and force creation of an Environmental Justice Task Force. We are also exploring potential litigation under civil rights and environmental laws. Our goal is to change the way in which planning and highway construction occurs—in an effort to change some of the structures that keep our community segregated.
Metropolitan Planning Organization CertificationMost urban communities are part of Metropolitan Planning Organizations, entities established under state law or federal rules, and designated with responsibility for planning transportation projects. The process is important, because highway plans that are not designated in transportation plans generally cannot be built. In addition, in Wisconsin as in many states, the MPO may also be responsible for land use planning, job access issues, economic development and other matters that determine what will get built, where and for whom.
But MPOs are not elected bodies and are not subject to requirements of proportional representation. Instead, MPO commissions are routinely weighted in favor of suburban interests. For example, Milwaukee’s MPO (the Southeastern Wisconsin Regional Planning Commission, or SEWRPC) covers seven counties. Milwaukee County, the largest of the seven and the only fully urbanized county, has ten times as many people as the smallest suburban county - yet both Milwaukee and the smallest suburban county (and every other county) each get three votes. The Commission’s institutional bias towards suburban interests exacerbates the region’s racial dynamics, because three-quarters of the region’s minority and low- income households, and 85% of its African-American households, live in (grossly under-represented) Milwaukee County. The Commission’s plans, the advisory committees it chooses to develop those plans, and the topics it chooses to study have all reflected that pro-suburban bias.
MPOs, however, are required to follow civil rights laws. Every four years, the Federal Highway Administration (FHWA) and, in certain cases, the Federal Transit Administration (FTA) review and certify MPOs. The review considers, among other issues, the MPO’s compliance with Title VI of the Civil Rights Act, the Americans with Disabilities Act, the Older Americans Act and other civil rights requirements. The MPO can lose its certification (and up to 20% of its federal funding) or other conditions can be imposed upon it.
The certification review includes a public hearing. These are often poorly attended, so it made an impact in Milwaukee when we helped organize neighborhood associations, the NAACP, the Black Health Coalition, the Fair Housing Council, the Sierra Club, youth and other organizations to testify that SEWRPC had not been responsive to the needs of their communities.
Although the federal government recertified SEWRPC (loss of certification is rare, although imposing certification conditions is more common), the FHWA and FTA did criticize the Commission’s relationships with urban communities. That gave activists leverage to push SEWRPC to set up an Environmental Justice Task Force, composed of representatives of communities of color, persons with disabilities, and other transit-dependent groups, to increase participation and to help identify potential benefits and adverse effects of regional planning programs and activities with respect to minority, low-income and disabled populations.
Title VI and Environmental JusticeAt the same time, community advocates and attorneys continue to press for more equity in regional planning. Under Title VI of the 1964 Civil Rights Act, “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.”
Federal money is handed out by federal agencies, and these agencies have regulations that implement Title VI. The regulations prohibit recipients of federal funds from taking actions that discriminate based on race, whether or not that discrimination is intentional. (However, the U.S. Supreme Court, in Alexander v. Sandoval, 532 U.S. 275 , has ruled that individuals cannot go to court to enforce these kinds of “disparate impact” regulations. Changing the Title VI law to expressly allow “disparate impact” lawsuits would make a significant difference in strengthening access to the courts for disadvantaged communities—and not just in transportation policy. While this civil rights fix has been proposed, more advocacy on this issue is needed.) The regulations also “expect” recipients to take affirmative action, and prohibit recipients from denying persons the opportunity to participate in planning, advisory or similar bodies. In the transportation context, these protections apply to any recipient of money from FHWA, and the regulations impose specific civil rights obligations on state highway agencies.
In addition to these regulations, in 1994, President Clinton issued Executive Order 12898, Federal Actions to Address Environmental Justice (EJ) in Minority Populations and Low-Income Populations. While the Environmental Justice Order does not itself create rights enforceable in a court, it is based upon Title VI. The Order is also useful in public education and in advocating for changes in the planning process—and the products that come out of that process.
The Environmental Justice Order requires that “each Federal agency shall make achieving 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 population federal agencies....” Environmental Justice applies to entities that receive funding from the federal government—not just to the federal agencies themselves. While the national administration has changed, the Environmental Justice Order still exists. (However, it is important to note that, ten years after its adoption in 2004, the EPA’s Office of the Inspector General concluded that the agency still had largely failed to implement its requirements.)
In compliance with the Executive Order, the FHWA issued its own Environmental Justice Order. It imposed requirements on the transportation planning process, including requiring local planners to “provid[e] public involvement opportunities and consider the results thereof,” “provid[e] meaningful access to public information concerning the human health or environmental impacts,” and to “solicit input from affected minority and low-income populations in considering alternatives during the planning and development of alternatives and decisions.” The FHWA Order also requires extensive data collection on race and income.
But the Environmental Justice Order also encompasses outcomes, not just processes. It requires those who receive federal funds to discuss the steps to be taken to “guard against disproportionately high and adverse effects on persons on the basis of race, or national origin.” The Order’s list of possible adverse effects is long, and goes well beyond what many persons think of when they hear the term “Environmental Justice”:
Adverse Effects means the totality of significant individual or cumulative human health or environmental effects, including interrelated social and economic effects, which may include, but are not limited to: bodily impairment, infirmity, illness or death; air, noise, and water pollution and soil contamination; destruction or disruption of man-made or natural resources; destruction or diminution of aesthetic values; destruction or disruption of community cohesion or a community’s economic vitality; destruction or disruption of the availability of public and private facilities and services; vibration; adverse employment effects; displacement of persons, businesses, farms, or nonprofit organizations; increased traffic congestion, isolation, 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 of FHWA programs, policies or activities.The breadth of the requirement can be helpful in pushing back against regional planners—and state and federal transportation officials—who ignore impacts that, for example, policies facilitating exclusionary suburban sprawl while reducing transit and ignoring affordable housing can have on low-income and minority communities. And if planners refuse to address the adverse effects that activists raise, it may set the stage for stronger legal claims of intentional discrimination in the future.
Highway Project and Environmental LawsEnvironmental laws may also provide additional tools to challenge the decision-making process.
For example, federal law requires that “possible 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.” The segregation and inequities imposed on communities of color are “economic and social effects” that must be considered in project planning.
Highway projects also must be consistent with clean air act requirements. Because Milwaukee has very high rates of some pollutants and we are concerned that air pollution is disproportionately affecting people who live near the highways (i.e., communities of color), we are researching and monitoring this issue to determine whether building bigger highways will worsen air quality for adjacent neighborhoods.
In addition, the National Environmental Policy Act (NEPA) requires federal agencies to evaluate the environmental impacts of and alternatives to proposed “major Federal actions significantly affecting the quality of the human environment.” The law explicitly requires agencies to consider indirect, growth-inducing and cumulative effects of projects. Those are precisely the kinds of effects that can have a discriminatory impact on minority communities, and they are ones we are pushing to ensure are addressed.
Who Benefits, Who Pays?As the federal, state and local governments decide how much money to spend on infrastructure and what projects to choose, the voices of minority and low-income communities must be heard. But process is not enough. A fair proportion of the benefit of our public investments must go towards meeting the transportation, housing and other needs of under-represented communities, needs that for decades have been as overlooked as the infrastructure of our bridges.
Resources“Title VI and Environmental Justice,” in Briefing Notebook for Transportation Decisionmakers, Officials, and Staff (Federal Highway Administration and Federal Transit Administration)—http://www.planning.dot.gov/documents/BriefingBook/BBook.htm#6BB
An Overview of Transportation and Environmental Justice (Federal Highway Administration, June 2006—http://www.fhwa.dot.gov/environment/ej2.htm
Thomas W. Sanchez, “An Inherent Bias? Geographic and Racial-Ethnic Patterns of Metropolitan Planning Organization Boards” (Brookings Institution, Jan. 2006) —http://www.brookings.edu/metro/pubs/20060124_mpos.pdf
Thomas W. Sanchez, Rich Stolz, and Jacinta S. Ma, “Moving to Equity: Addressing Inequitable Effects of Transportation Policies on Minorities” (The Civil Rights Project and the Center for Community Change, June 2003)— http://www.civilrights project.ucla.edu/research/transportation/trans_paper03.php
“Highway Health Hazards,” Sierra Club (Summer 2004)—http://www.sierraclub.org/sprawl/report04_highwayhealth/report.pdf
Karyn Rotker is the Poverty, Race & Civil Liberties Attorney of the ACLU of Wisconsin, working on issues including environmental justice, police abuse, local attempts to enforce immigration law, public education, and disability and race discrimination in the welfare system. firstname.lastname@example.org