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Environmental Justice

Overview

This section provides an overview of environmental justice and related requirements as they affect the transportation community.

Topics include the following:

 

Background

The concept of “environmental justice” is rooted in Title VI of the Civil Rights Act of 1964, which prohibited discrimination based on race, color and national origin, and other nondiscrimination statutes as well as other statutes including the National Environmental Policy Act of 1969, the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, and 23 U.S.C Section 109(h).

In 1971, the Council on Environmental Quality’s annual report acknowledged racial discrimination adversely affects the environment of the urban poor.  During the next ten years, activists maintained that toxic waste sites were disproportionately located in low-income and areas populated by “people of color.” By the early 1980s, the environmental justice movement had increased its visibility and broadened its support base.

In 1982, the environmental justice movement captured the nation’s attention when Warren County, North Carolina, residents demonstrated against the siting of a hazardous waste landfill.  During 1983, the General Accounting Office issued a report stating that three out of four hazardous waste facilities in the U.S. Environmental Protection Agency’s (U.S. EPA) Region 4 were in African American communities.  This led to the United Church of Christ undertaking a nationwide study and publishing Toxic Waste and Race in the United States (1987).  The study stated that socioeconomic factors, with race being the major factor, played a role in the siting of toxic waste facilities. 

In 1992, the U.S. EPA established an Environmental Equity Workgroup to study the allegations of disproportionate impacts of waste facility siting and general environmental inequities.  Also, in that same year as a result of the findings of the Environmental Equity Workgroup, EPA created the Office of Environmental Justice.  In 1993, the Center for Policy Alternatives, the National Association for the Advancement of Colored People, and the United Church of Christ Commission for Racial Justice released a study with additional findings of environmental inequities. The study found that minorities were 47 percent more likely than others to live near hazardous waste facilities.  In that same year, the EPA established the National Environmental Justice Advisory Council and made environmental justice a priority.  These events and others led to the issuance of a federal Executive Order on Environmental Justice.

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The Environmental Justice Executive Order, DOT Order, and FHWA Order

On February 11, 1994, President Bill Clinton signed Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations. This Executive Order requires that each Federal agency shall, to the greatest extent practicable and permitted by law, “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 populations.”  

The Federal Highway Administration’s (FHWA) environmental justice website further describes the Executive Order’s requirements related to the NEPA process as follows:

Executive Order 12898 and the accompanying Presidential Memorandum call for specific actions to be directed in NEPA-related activities. They include:

  • Analyzing environmental effects, including human health, economic, and social effects on minority populations and low-income populations when such analysis is required by NEPA;
  • Ensuring that mitigation measures outlined or analyzed in [Environmental Assessments] EA's, [Environmental Impact Statements] EIS's, and [Records of Decision] ROD's, whenever feasible, address disproportionately high and adverse environmental effects or proposed actions on minority populations and low-income populations;
  • Providing opportunities for community input in the FHWA NEPA process, including identifying potential effects and mitigation measures in consultation with affected communities and improving accessibility to public meetings, official documents, and notices to affected communities; and
  • In implementing Section 309 of the Clean Air Act, EPA must ensure that the agencies have fully analyzed environmental effects on minority communities and low-income communities, including human health, social, and economic effects.

The Executive Order was followed on April 15, 1997, by the U.S. Department of Transportation Order on Environmental Justice (DOT Order 5610.2).  It summarized and expanded upon the requirements of Executive Order 12898, required integration of environmental justice into the NEPA process through analysis of environmental justice impacts and public involvement, and defined nine relevant terms.

The DOT order specified that under Title VI, DOT policies, programs, and activities will be administered so as to identify early on the risk of discrimination so that positive corrective action can be taken.

Under the DOT order, any findings, determinations and/or demonstration made in accordance with the order “must be appropriately documented, normally in the environmental impact statement or other NEPA document prepared for the program, policy or activity, or in other appropriate planning or program documentation.”

The report Technical Methods to Support Analysis of Environmental Justice Issues (National Cooperative Highway Research Program) Project 8-36 (11), provided the following further explanation of the U.S. DOT Order:

For all groups covered by Executive Order 12898, the U.S. DOT order establishes an “avoid if practicable” standard of protection. 

“The [USDOT officials] will ensure that any of their respective programs, policies or activities will only be carried out if further mitigation measures or alternatives that would avoid or reduce the disproportionately high and adverse effect are not practicable.  In determining whether a mitigation measure or an alternative is ‘practicable,’ the social, economic (including costs) and environmental effects of avoiding or mitigating the adverse effects will be taken into account.”

For groups protected under Title VI (minorities), the U.S. DOT order establishes a more stringent requirement.

“The [USDOT officials] will also ensure that any of their respective pro­grams, policies or activities that will have a disproportionately high and adverse effect on populations protected by Title VI (‘protected popula­tions’) will only be carried out if”:

“1) a substantial overall need for the program, policy, or activity exists, based on the overall public interest, and

“2) alternatives that would have less adverse effects on protected populations (and that still satisfy the need identified in paragraph 1) above, either (i) would have other adverse social, economic, environmental or human health impacts that are more severe, or (ii) would involve increased costs of extraordinary magnitude.”

The DOT order defines the following relevant terms:

  • "DOT" means the office of the Secretary, DOT operating administrations, and all other DOT components.
  • "Low-Income" is defined as a person whose median household income is at or below the U.S. Department of Health and Human Services poverty guidelines.
  • "Minority" is defined as a person who is:
    • Black (a person having origins in any of the black racial groups of Africa);
    • Hispanic (a person of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish culture or origin, regardless of race);
    • Asian American (a person having origins in any of the original peoples of the Far East, Southeast Asia, the Indian subcontinent, or the Pacific Islands); or
    • American Indian and Alaskan Native (a person having origins in any of the original people of North America and who maintains cultural identification through tribal affiliation or community recognition). [Editor’s Note: OMB, in its Bulletin No. 00-02, "Guidance on Aggregation and Allocation of Data on Race for Use in Civil Rights Monitoring and Enforcement," issued March 9, 2000, provided guidance on the way Federal agencies collect and use aggregate data on race. Added to the previous standard delineations of race/ethnicity was the category of:  Native Hawaiian or Other Pacific Islander - a person having origins in any of the original peoples of Hawaii, Guam, Samoa, or other Pacific Islands.]
  • "Low-Income Population" means any readily identifiable group of low-income persons who live in geographic proximity, and, if circumstances warrant, geographically dispersed/transient persons (such as migrant workers or Native Americans) who will be similarly affected by a proposed DOT program, policy or activity. 
  • "Minority Population" means any readily identifiable groups of minority persons who live in geographic proximity, and if circumstances warrant, geographically dispersed/transient persons (such as migrant workers or Native Americans) who will be similarly affected by a proposed DOT program or activity.
  • "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 DOT programs, policies, or activities.
  • "Disproportionately high and adverse effect" on minority and low-income populations means an adverse effect that:
    • Is predominately borne by a minority population and/or a low-income populations; or
    • Will be suffered by the minority population and/or low-income population and is appreciably more severe or greater in magnitude that the adverse effect that will be suffered by the non-minority population and/or non-low-income population.
  • "Programs, policies, and/or activities" are defined as all projects, programs, policies, and activities that affect human health or the environment, and which are undertaken or approved by DOT.  These include, but are not limited to, permits, licenses, and financial assistance provided by DOT.  Interrelated projects within a system may be considered to be a single project, program, policy or activity for the purposes of this Order.
  • "Regulations and guidance" means regulations, programs, policies, guidance, and procedures promulgated, issued, or approved by DOT.

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FHWA/FTA Guidance

The Executive Order and the DOT Order were followed on Dec. 2, 1998, by FHWA Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (DOT Order 6640.23). This order establishes policies and procedures for FHWA to use in complying with the Executive Order.

In December 2011, FHWA issued Guidance on Environmental Justice and NEPA, which provides information on considering environmental justice issues in the National Environmental Policy Act process.

On October 7, 1999, the FHWA and the Federal Transit Administration issued a memorandum titled Implementing Title VI Requirements in Metropolitan and Statewide Planning.  This memorandum provides clarification for field offices on how to ensure that environment justice is considered during current and future planning certification reviews.  While Title VI and environmental justice have often been raised during project development, the law also applies equally to the processes and products of planning. 

In order to ensure compliance with Title VI in the planning process, FTA and FHWA conduct planning certification reviews, as outlined in the memorandum. The memorandum provides division FHWA and FTA staff a list of proposed review questions to assess Title VI capability and provides guidance in assessing Title VI capability.  Failure to be in compliance can lead to a corrective action being issued by FTA and/or FHWA, and failure to address the corrective action can affect continued Federal funding. For more details on the certification process, link to Implementing Title VI Requirements in Metropolitan and Statewide Planning.

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Environmental Justice Principles

The DOT order specified that under Title VI, DOT policies, programs, and activities will be administered so as to identify early on the risk of discrimination so that positive corrective action can be taken.

Under the DOT order, any findings, determinations and/or demonstration made in accordance with the order “must be appropriately documented, normally in the environmental impact statement or other NEPA document prepared for the program, policy or activity, or in other appropriate planning or program documentation.”

According to an FHWA overview on environmental justice, principles should be considered:

  • Avoid, minimize, or mitigate disproportionately high and adverse human health or environmental effects, including social and economic effects, on minority and low-income populations.
  • Ensure the full and fair participation by all potentially affected communities in the transportation decision-making process.
  • Prevent the denial of, reduction in, or significant delay in the receipt of benefits by minority and low-income populations.

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Role of Transportation Agencies, MPOs, and the Public

FHWA’s environmental justice website provides the following explanation of the roles of transportation agencies, metropolitan planning organizations and the public related to environmental justice.

Federal Agencies -- FHWA and FTA staff assure that Federal transportation regulations and policies affirm and reinforce nondiscrimination; Federal staff will take other important actions to:

  • Ensure that Title VI compliance and environmental justice principles are understood and implemented in metropolitan and statewide planning activities and in NEPA processes and documents.
  • Identify effective practices, potential models, and other technical assistance resources to promote the integration of environmental justice into all planning, development, and implementation activities.

State DOTs:

  • Develop the technical capability to assess the benefits and adverse effects of transportation activities among different population groups and use that capability to develop appropriate procedures, goals, and performance measures in all aspects of their mission.
  • Ensure that State Transportation Improvement Program (STIP) findings of statewide planning compliance and NEPA activities satisfy the letter and intent of Title VI requirements and environmental justice principles.
  • Enhance their public-involvement activities to ensure the meaningful participation of minority and low-income populations.
  • Work with Federal, State, local, and transit planning partners to create and enhance intermodal systems, and support projects that can improve the natural and human environments for low-income and minority communities.

MPOs - To certify compliance with Title VI and address environmental justice, MPOs need to:

  • Enhance their analytical capabilities to ensure that the long-range transportation plan and the transportation improvement program (TIP) comply with Title VI.
  • Identify residential, employment, and transportation patterns of low-income and minority populations so that their needs can be identified and addressed, and the benefits and burdens of transportation investments can be fairly distributed.
  • Evaluate and - where necessary - improve their public involvement processes to eliminate participation barriers and engage minority and low-income populations in transportation decision making.

Transit Providers -- Transit agencies support Title VI and environmental justice principles when they:

  • Ensure that new investments and changes in transit facilities, services, maintenance and vehicle replacement deliver equitable levels of service and benefits to minority and low-income populations.
  • Avoid, minimize or mitigate disproportionately high and adverse effects on minority and low-income populations.
  • Enhance public involvement activities to identify and address the needs of minority and low-income populations in making transportation decisions.

The Public - Individuals and groups advance the letter, spirit, and intent of Title VI and environmental justice in transportation when they:

  • Participate in public involvement activities (meetings, hearings, advisory groups, and task forces) to help responsible State and local agencies understand community needs, perceptions, and goals.
  • Get involved with State and local agencies to link TEA-21 programs with other Federal, State, and local resources to fund projects that support community goals.

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SAFETEA-LU

Enacted in 2005, the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) placed additional emphasis on environmental stewardship, the consideration of environmental issues as a part of metropolitan and statewide transportation planning, and the linking of planning and the environmental assessment process.  Each of these aspects strengthens the linkages between planning and environment and creates opportunities to examine the potential for environmental justice issues early on and throughout the project delivery process.

Eight planning factors are defined in SAFETEA-LU.  The fifth of these factors states that the planning process “shall provide for consideration of projects and strategies that will protect and enhance the environment, promote energy conservation, improve the quality of life, and promote consistency between transportation improvements and State and local planned growth and economic development patterns.”

Compared to earlier legislation, SAFETEA-LU contains a new requirement that a transportation plan “shall include a discussion of potential environmental mitigation activities and potential areas to carry out these activities, including activities that may have the greatest potential to restore and maintain the environmental functions affected by the plan.”  

For more information, link to the SAFETEA-LU topic on this website.

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Avoiding and Mitigating Adverse Disproportionate Effects

Information to support an environmental justice analysis can come from a combination of sources, including a Community Impact Analysis and the U.S. Census of the Population.

The Community Impact Analysis (CIA) provides a larger framework for assessing, as required by the DOT order, whether a proposed action or plan causes impacts to any populations or communities in the project area.  The CIA will also provide information to help determine whether or not there are disproportionately high and adverse effects on minority populations and low-income populations, and whether these populations are denied benefits.

Ideally, a transportation improvement can be planned and designed in such a way that it enhances affected neighborhoods and communities.  If this is not possible, the desire is then to avoid adverse consequences, minimize the magnitude of such impacts if they can not be avoided, or to provide mitigation.

The practice of Context Sensitive Solutions (CSS)—  also known as Context Sensitive Design (CSD) – is proving to be an excellent approach for developing transportation plans and projects so that they improve community quality of life.  CSS is an approach to transportation design that considers the total context within which a transportation improvement will exist. It is a collaborative, interdisciplinary approach that involves all stakeholders to develop a transportation facility that fits its physical and social setting and preserves community, scenic, aesthetic, historic, and environmental resources, while maintaining safety and mobility.

Mitigation approaches increasingly include not only reducing direct impacts (e.g., through the provision of sound walls or pedestrian overpasses), but also compensating the com­munity in other ways.  For example, community improvements such as parks or pedes­trian amenities may be offered as compensation for the negative impacts resulting from the project. 

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Other Traditionally Underserved Populations

Both Title VI of the Civil Rights Act of 1964 and the Executive Order on Environmental Justice are very specific in terms of which populations they protect. Title VI of the Civil Rights Act of 1964 prohibits discrimination based on race, color and national origin.  The Executive Order on Environmental Justice protects minority and low-income populations.  Neither addresses discrimination based on age, disability, physical or mental handicap, gender or religion. These populations are addressed by other non-discrimination statutes. Recipients of federal assistance also must take action to prevent discrimination against the elderly, the disabled, and women.

Collectively, these populations and the populations protected under Title VI of the Civil Rights of 1964 and the Executive Order on Environmental Justice are often referred to as “traditionally underserved populations.” 

The National Cooperative Highway Research Program report, Technical Methods to Support Analysis of Environmental Justice Issues (NCHRP) Project 8-36 (11) describes provisions in the following laws that protect these populations:

  •  Age Discrimination Act of 1975:  “No person in the United States shall, on the basis of age, 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-Aid Highways Act: “No person in the United States shall, on the ground of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal assistance.”
  • Rehabilitation Act of 1973: “No qualified handicapped person in the United States shall, solely by reason of his handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”
  • Americans with Disabilities Act of 1990: “No qualified individual with a disability shall, by reason of such disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal assistance.”

All environmental justice populations are traditionally underserved populations; however, all traditionally underserved populations are not necessarily environmental justice populations.  For example, an elderly, disabled or handicapped person who is non-low-income and non-minority would not be considered among the environmental justice population, as they are neither minority nor low-income, but could be referred to as “traditionally underserved.”

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Environmental Justice Legislation and Guidance

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Additional Information

More information on environmental justice issues related to transportation may be found on FHWA’s environmental justice website, in FHWA's Guidance on Environmental Justice and NEPA, and in the report Technical Methods to Support Analysis of Environmental Justice Issues (National Cooperative Highway Research Program Project 8-36 (11)).

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