In 1994, President Clinton issued Executive Order 12898 (EO 12898) Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations. The Executive Order focused attention on the environmental and human health conditions in minority and low-income communities. Per the Executive Order, each Federal agency "shall make achieving environmental justice part of its mission by identifying and addressing, as appropriate, any disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations."
In support of EO 12898, the U.S. Department of Transportation (DOT) issued an Order on environmental justice, DOT Order 5610.2. The Federal Highway Administration (FHWA) issued its order on environmental justice, FHWA Order 6640.23. The DOT Order was updated on May 2, 2012, and the FHWA order was updated on June 14, 2012.
Over the years, U.S. DOT and FHWA have encouraged a proactive approach to the implementation of environmental justice, aimed at preventing disproportionately high and adverse impacts in their programs, policies, and activities. By being proactive, Federal, State, local, and tribal agencies can better serve all of the public who rely on transportation systems and services to enhance their quality of life. This approach can reduce conflicts and also reinforce compliance with other related requirements, such as the National Environmental Policy Act (NEPA) of 1969, 23 U.S.C. 109(h) (which addresses social and economic impacts), and public involvement in Statewide and metropolitan planning and project development. To foster greater awareness of environmental justice considerations in transportation activities, the following are general Questions and Answers addressing the basics on environmental justice for FHWA actions.
Title VI of the Civil Rights Act of 1964 specifically provides that "…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." (42 U.S.C. § 2000d).
The DOT environmental justice states that all DOT operations shall be administered so as to identify and avoid discrimination (Title VI and related statutes) and ensure that programs, policies, and other activities do not have disproportionately high and adverse human health or environmental effects on minority or low-income populations. This goal is to be achieved, in part, by actively adhering to the principles and practices of both Title VI and NEPA during the development and implementation of transportation activities. The FHWA environmental justice order contains similar provisions in relationship to the consideration of Title VI and environmental justice.
The DOT and FHWA environmental justice orders define "low-income" as "a person whose household income is at or below the Department of Health and Human Services poverty guidelines." The Department of Health and Human Services (HHS) poverty guidelines are used as eligibility criteria for the Community Services Block Grant Program and a number of other Federal programs. However, a State or locality may adopt a higher threshold for low-income as long as the higher threshold is not selectively implemented and is inclusive of all persons at or below the HHS poverty guidelines. The HHS Poverty guidelines are updated annually. The most current HHS poverty guidelines can be found at HHS's website: http://aspe.hhs.gov/poverty/
The Department's planning regulations at 23 C.F.R. 450.316(a)(1)(vii) and 23 C.F.R. 450.210(a)(1)(viii) require metropolitan planning organizations (MPOs) and States to "…[seek] out and [consider] the needs of those traditionally underserved by existing transportation systems, such as low-income and minority households, who may face challenges accessing employment and other services..."
As required by NEPA and 23 U.S.C. 109(h) and implemented through FHWA environmental regulations in 23 CFR Part 771, the social, economic, and environmental impacts on all communities, including low-income communities and populations, must be identified and addressed.
The updated DOT and FHWA environmental justice orders define five (5) minority groups as follows:
U.S. Census data utilizes specific definitions of minority groups and other terms, but can be useful for locating minority populations. Census data is available at the census-tract, census-block, and block-group levels. Demographic profiles from the 2010 Census may be found at: http://www.census.gov/2010census/popmap/
Other Census data, including the American Community Survey (ACS) and data from previous decades, may be accessed by going to the 2010 Census home page at 2010.census.gov and selecting various options from an interactive menu. Other data can supplement and be compared with the U.S. Census data, if the data has a sound basis and is accurate. In some instances, population characteristics can be derived from information available from MPOs, councils of government, and city or county agencies. Other local sources of information include State and local tax and financing agencies, economic and job development agencies, social service agencies, local health organizations, school districts, local public agencies, and community action agencies. The source and basis of all information and what it represents should be identified. No matter the source, analysts should use the most current data available and be consistent in its application.
All reasonably foreseeable adverse social, economic, and environmental effects on minority populations and low-income populations must be identified and addressed. As defined in the DOT and FHWA environmental orders, adverse effects include, but are not limited to:
The two terms "minority" and "low-income" should not presumptively be combined. There are minority populations of all income levels; and low-income populations that may be minority, non-minority, or a mix in a given area.
While the minority or low-income population in an area may be small, this does not eliminate the possibility of a disproportionately high and adverse effect of a proposed action. It is not correct to suggest that if minority or low-income populations are small (such as less than 50%) that there is no need to assess whether there is an Environmental Justice issue. Environmental justice determinations are made based on effects, not population size. It is important to consider the comparative impact of an action among different population groups.
Planning public involvement procedures require MPOs and States to seek out and consider the needs of those traditionally underserved by existing transportation systems, such as low income and minority households.1 Although Environmental Justice concerns are frequently raised during project development, they also are present when undertaking the plans, programs, and activities of transportation planning. Environmental Justice should be considered in all phases of planning. This includes all public-involvement plans and activities, the development of Regional Transportation Plans (RTP's), Transportation Improvement Programs (TIP's), Statewide Transportation Improvement Programs (STIP's), and work programs (such as the Unified Planning Work Programs (UPWP's). A truly integrated and effective planning process actively considers and promotes Environmental Justice within projects and groups of projects, across the total plan, and in policy decisions.
Environmental Justice in planning should focus on service equity, travel demand and forecasting, mobility options, and accessibility to jobs and services at a regional transportation system level. The Emerging Trends and Best Practices Guidebook (June 2011) identifies two case studies that demonstrate good Environmental Justice approaches in planning. http://www.fhwa.dot.gov/environment/environmental_justice/resources/guidebook/
At the start of the planning process, planners should determine whether Environmental Justice populations exist in the study area, and should use data and other information to: (1) determine benefits to and potential negative impacts on minority populations and low-income populations from proposed investments or actions; (2) quantify expected effects (total, positive, and negative) and disproportionately high and adverse effects on minority populations and low-income populations; and (3) determine the appropriate course of action, whether avoidance, minimization, or mitigation. If issues are not addressed at the planning stage, they may arise during project development, or later when they could be more difficult to mitigate and, as a result, delay project decisions.
Using PEL, planning Environmental Justice studies and decisions can be considered for use in NEPA if the materials satisfy NEPA requirements. The planning regulations (23 CFR 450.212, 450.318, and Appendix A) and as identified in 23 U.S.C. 168, CFR Part 771, and CFR Parts 1500-1508, all outline the process agencies may use if they wish to facilitate the adoption of planning decisions and documents during NEPA scoping.
"Public involvement" encompasses public participation, public outreach and public engagement proactive activities. It is an integral part of transportation planning and project development decision-making. As per the EO 12898, public participation and access to information extends to limited English speaking populations and consultation with Federally-recognized Indian Tribes on a government to government basis. Both the DOT EJ Order and FHWA environmental justice order direct Federal agencies to provide minority populations and low-income populations' access to information and meaningful opportunities for public participation in matters that may impact human health or the environment.
Addressing environmental justice concerns includes effectively involving the public in the planning process and the project development process. Continuous interaction between community members and transportation professionals is critical to successfully identify and resolve potential environmental justice concerns and in addressing other environmental issues such as historic properties, wetlands and air quality.
Environmental Justice should be considered and addressed in all NEPA decision-making and appropriately documented in Environmental Impact Statements, Environmental Assessments, and Categorical Exclusions. Environmental justice in NEPA typically is more localized than in the planning phase, with detailed project level Environmental Justice data, benefits and impacts for each alternative under consideration.
The DOT environmental justice order, the FHWA environmental justice order, and the FHWA December 16, 2011, Guidance Memo on Environmental Justice and NEPA provide information on how to address environmental justice in NEPA documents.http://environment.fhwa.dot.gov/projdev/guidance_ej_nepa.asp
The following bullets highlight activities to be undertaken:
Yes, environmental justice applies to all FHWA-approved or funded project development programs, policies, activities and products, such as Environmental Impact Statements (EISs), Environmental Assessments (EAs), or Categorical Exclusions (CEs). In project development, potential impacts to the human environment should drive the class of action decision just as much as potential impacts to the natural environment. Impacts to both the natural and human environment are important and, under NEPA and other Federal laws, must be considered during transportation decision-making. The key here is when an EJ population is identified in the project area environmental justice should be considered and addressed regardless of whether the analysis is in an EIS, EA or CE.
Environmental justice pertains to minority populations and low-income populations. If, within these Environmental Justice communities, there are elderly, children, and persons with disabilities, then they would be considered in the analysis of overall impacts. Note also the potential impacts of an action on such persons are part of the NEPA evaluation pursuant to 23 CFR 771.105(f), which reflects requirements of other Federal non-discrimination laws.
Community Impact Assessment (CIA) is an in-depth assessment used by many transportation departments to address the requirements of 23 U.S.C. 109(h) and to achieve a comprehensive evaluation that includes these and other sensitive groups. The CIA is a process to evaluate the effects of a transportation action on a community and its quality of life. The CIA process begins in the planning phase and moves into the project- development process to promote environmental streamlining and balance the outcome of the project impacts between the natural and human environment. Conducting a thorough community impact assessment would address any concentrations of the elderly, children, persons with disabilities, or minority and low-income population groups (i.e., head of household). environmental justice evaluations are subsets of a properly conducted CIA.
1 23 C.F.R. 450.316(a)(1)(vii) and 23 C.F.R. 450.210(a)(1)(viii).