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.
The Environmental Justice Executive Order, DOT Order, and FHWA Orders
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:
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- 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.
Additional orders followed, including the following:
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- Department of Transportation Order 5610.2(a) (May 12, 2012) – this order sets forth the DOT policy to consider environmental justice principles in all (DOT) programs, policies, and activities. It describes how the objectives of environmental justice will be integrated into planning and programming, rulemaking, and policy formulation. The Order sets forth steps to prevent disproportionately high and adverse effects to minority or low-income populations through Title VI analyses and environmental justice analyses conducted as part of Federal transportation planning and NEPA provisions. It also describes the specific measures to be taken to address instances of disproportionately high and adverse effects and sets forth relevant definitions
- FHWA Order 6640.23A (June 14, 2012) – Environmental justice at FHWA means identifying and addressing disproportionately high and adverse environmental or human health effects of the agency’s programs, policies, and activities on minority populations and low-income populations to achieve a more equitable distribution of benefits and burdens from the agency’s activities.
FHWA/FTA Guidance
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 and links to these documents, see FHWA’s EJ Facts page.
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, the following principles should be considered:
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- 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.
FHWA’s environmental justice website explains the roles of transportation agencies, metropolitan planning organizations and the public related to environmental justice.
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) 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.
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:
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- 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.”
Additional Information
More information, including links to laws, regulations and policy documents on environmental justice issues related to transportation may be found on FHWA’s environmental justice website.