Equity Analysis in Regional Transportation Planning Processes, Volume 2: Research Overview (2020)

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8 Background Many metropolitan planning organizations (MPOs) and transit agencies recognize that the benefits and burdens of the transportation system may not be distributed equitably among the various population groups in the agency’s service area. Agency staff are working to improve their understanding of potential inequities so they can remedy them, but even the most well- intentioned agencies find it challenging to conduct meaningful analyses. Identifying these inequities is not merely an exercise in altruism: for agencies receiving federal assistance, it is required under federal laws and regulations. Three federal laws and directives are germane to equity analyses: 1. Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq.); 2. Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (Exec. Order No. 12898, 59 FR 7629 [February 16, 1994], hereafter referred to as E.O. 12898); and 3. Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency (Exec. Order 13166, 65 FR 159 [August 16, 2000], hereafter, E.O. 13166). Title VI prohibits discrimination on the basis of race, color, or national origin in programs receiving federal assistance. Transportation agencies are legally required to comply with Title VI, and FTA and FHWA must monitor their compliance. E.O. 12898 protects low-income persons and minority persons, and directs federal agencies to develop an agency-wide environmental justice (EJ) strategy. E.O. 13166 requires federal agencies to identify any need for services to persons with limited English proficiency (LEP), and to develop and implement a system to provide those services so that persons with LEP can have meaningful access to them. E.O. 13166 requires agencies to make federally funded services, programs, and activities accessible to persons with a limited ability to read, write, speak, or understand English. It does not require an analysis of the potentially disparate benefits and burdens of transportation invest- ments on populations with LEP. Nonetheless, consideration of LEP needs and concerns can complement a meaningful analysis. Guidance issued in 2002 by the U.S. Department of Justice (DOJ) notes that failure to ensure that persons with LEP can effectively participate in or benefit from federally assisted programs and activities may violate the Title VI prohibition against national origin discrimination. Table 1 broadly summarizes the key areas in which Title VI, E.O. 12898, and E.O. 13166 place requirements on agencies. Section D of FTA Circular 4703.1 notes that EJ principles often are confused with Title VI requirements. Key differences are summarized in Table 2. Although Title VI is one tool for agencies to use to achieve the principles of environmental justice, it is important to recognize that Title VI imposes statutory and regulatory requirements that are broader in scope than EJ. Agencies are cautioned that although there may be overlap, C H A P T E R 1

Background 9 engaging in an EJ analysis under federal transportation planning and the National Environ- mental Policy Act of 1969 (NEPA) provisions will not satisfy Title VI requirements as outlined in FTA’s Title VI Circular. Similarly, a Title VI analysis will not necessarily satisfy EJ considerations, given that Title VI does not include low-income populations. Title VI applies to all activities of federal recipients, not solely those activities which may have disproportionately high and adverse human health or environmental effects on EJ populations. As an example, by itself a bus rehabilitation project may not impose disproportionately high or adverse health or environmental effects on EJ populations; however, the use of the buses subsequent to the rehabilitation project may be subject to a Title VI analysis to ensure that the assignments of vehicles to particular areas do not result in disparate impacts on the basis of race, color, or national origin. In addition, if substantive changes are made to the service levels for which the rehabilitated or other buses will be used (i.e., if the vehicles are deployed in such a way that the nature and quantity of service in a particular area is changed), then a service equity analysis must be conducted under Title VI to determine whether this change results in a disparate impact on the basis of race, color, or national origin. The requirements for that particular analysis are part of the compliance determinations made for federal transit recipients under FTA’s Title VI Circular, and agencies are encouraged to review that document (FTA Circular 4703.1). Research Problem This research focused primarily on the ways MPOs address Title VI and EJ requirements. Though the requirements of these federal policies vary, extensive overlap exists between the two, and with the LEP directive. Transportation agencies often submit a single equity analysis of a plan or project designed to satisfy all sets of requirements. Reviews of the state of the practice routinely show a variety of approaches, but no consistently applied set of best practices Title VI Environmental Justice (EJ) Limited English Proficiency (LEP) Authorizing Directive Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq.) E.O. 12898 (1994) E.O. 13166 (2000) Required Populations Race, color, and national origin Minority persons and low-income persons Individuals with a limited ability to read, write, speak, or understand English Applicable Agencies/ Programs Programs receiving federal assistance Federal agencies and recipients of federal financial assistance Federally funded programs and activities Guidance 23 CFR Part 200 and 450; FTA Title VI Circular 4702.1B (2012) FTA EJ Circular 4703.1 (2012) U.S. DOJ Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons (2000) Table 1. Key elements in Title VI, E.O. 12898, and E.O. 13166.

10 Equity Analysis in Regional Transportation Planning Processes Key Aspects of the Authorities Title VI Environmental Justice (EJ) What is the basis for the authority? Title VI is a federal statute (42 U.S.C. § 2000d et seq.) and provides that “no person shall, on the grounds of race, color, and 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.” The basis for addressing EJ is E.O. 12898, which directs each federal agency to “make achieving environmental justice part of its mission.” E.O. 12898 was intended to “improve the internal management of the executive branch and not to create legal rights enforceable by a party against the [United States].” What is the purpose of the authority? Title VI prohibits recipients of federal financial assistance (e.g., states, local governments, transit providers) from discriminating on the basis of race, color, or national origin in their programs or activities, and it obligates federal funding agencies to enforce compliance. E.O. 12898 calls on each federal agency to achieve EJ “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. . . .” To whom does the authority apply? Title VI is a federal law that applies to recipients and subrecipients of federal financial assistance (e.g., states, local governments, transit providers), and not to [the U.S. DOT] itself. E.O. 12898 applies to federal agency actions, including actions by the U.S. DOT and the FTA. Title VI is one of the tools used by federal agencies to implement this directive. What does the authority require, and of whom? Under Title VI, the U.S. DOT has the responsibility to provide oversight of recipients and to enforce their compliance with Title VI, to ensure that recipients do not use U.S. DOT funds to subsidize discrimination based on race, color, or national origin. E.O. 12898 is a directive from the president of the United States to federal agencies intended to improve the internal management of the federal government. The U.S. DOT has issued guidance on implementing E.O. 12898. Updated in May 2012, the current version of this guidance is U.S. DOT Order 5610.2(a). What does the authority say with regard to negative effects or impacts? In accordance with 49 CFR Part 21 and Title VI case law, if an otherwise facially neutral program, policy, or activity will have a discriminatory impact on minority populations, that program, policy or activity may only be carried out if (1) the recipient can demonstrate a substantial legitimate justification for the program, policy or activity; (2) there are no comparably effective alternative practices that would result in less disparate impacts; and (3) the justification for the program, policy or activity is not a pretext for discrimination. The U.S. DOT implemented E.O. 12898 in Order 5610.2(a), which provides that “if a DOT program, policy, or activity will have a disproportionately high and adverse effect [DHAE] on minority or low-income populations, that program, policy, or activity may only be carried out if further mitigation measures or alternatives that would reduce the [DHAE] 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. Does the authority create any rights or remedies? Title VI allows persons alleging discrimination based on race, color, or national origin by recipients of federal funds to file administrative complaints with the federal departments and agencies that provide financial assistance. Persons alleging intentional discrimination (i.e., disparate treatment) may bring a court action seeking to enforce Title VI, but they cannot do so with regard to allegations of discrimination based on agency disparate impact regulations. Disparate impact complaints may be filed with the federal agency. E.O. 12898 establishes the executive branch policy on EJ; it is not enforceable in court and does not create any rights or remedies. Table 2. Differences between Title VI and EJ authorities. or standards for methods, metrics, or reporting formats across agencies. Many agencies are still experimenting with the most applicable approach, which, given the complex array of factors that affect each region, understandably varies across the country. The U.S. DOT has produced several guidance documents and circulars to help agencies comply with Title VI and EJ requirements, but agencies are still finding it challenging to under- stand and evaluate the comparative impacts of their actions on differing population groups. MPOs are seeking guidance on how to analyze how impacts differ for populations of different

Background 11 incomes, demographics, languages, and geographic areas; how to measure effects on health, environment, and community cohesion; and how to understand how agency actions influence community outcomes. Research Objectives and Scope The goal of TCRP Project H-54 was to provide MPOs with a reference guide of recommended quantitative and qualitative methods for conducting equity analyses that included input from underserved populations. Published as Volume 1 of TCRP Research Report 214, the guide aims to be adaptable to different applications, such as for analyzing the equity impacts of the long-range plan, a corridor plan, or the transportation improvement program (TIP). The guide’s recom- mendations also may be adapted to be useful to other users, such as transit agencies. For this study, the term equity analysis refers to any analysis conducted to determine whether different population groups are equitably experiencing the benefits and burdens of the transportation system and of transportation agencies’ actions. This concept of equity analysis includes such analyses conducted to comply with both the letter and spirit of federal laws, regulations, and guidance relating to Title VI and EJ. Agencies may also conduct equity analyses that include additional population groups relevant in their service area, such as zero- vehicle households or older adults. TCRP is focused on research related to public transportation, which is central to meeting the needs of many traditionally underserved populations. This project addresses regional transpor- tation equity analyses in general terms rather than focusing specifically on how MPOs analyze transit. MPO planning is by nature multimodal; and MPOs usually do not undertake detailed equity analyses of transit or other modes. Transit agencies must, by regulation, conduct equity analyses at the operational or street project level. A sound, regional multimodal equity analysis captures not only the benefits and burdens of transit, but also the impacts of other actions that support transit use, such as improving pedestrian access to transit station areas, or pricing congestion to support transit use, and the potential tradeoffs between investing in transit or investing in other modes. The research and guide identify options for ensuring that equity analyses capture the benefits and burdens of transit.