Overview of Final Circular 4702.1B Title VI Requirements and Guidelines for Recipients February 2013
Title VI Prohibits discrimination on the basis of race, color, or national origin in Federally funded programs and activities 2
EJ and T6 EJ Executive Order Applies to Federal agencies Recipients facilitate FTA compliance with E.O. Title VI Statute Applies to recipients FTA oversees recipients compliance with Title VI regulations 3
General Requirements The Title VI circular applies to all grantees: Transit agencies MPOs State DOTs Recipients of special funds such as TIGER and Urban Circulator grants Subrecipients
Requirements for ALL Recipients Eight elements contained in every Title VI Program: Notice of Rights under Title VI How to File a Complaint, copy of complaint form List of Title VI investigations, complaints or lawsuits Public Participation Plan LEP Plan Racial Breakdown of Non-elected Advisory Councils Narrative Describing Subrecipient Monitoring Board of Directors resolution or meeting minutes demonstrating the board approved the Title VI Program
Demand Response Providers Providers of demand response service responsible only for Chapter 3 requirements Providers of public transportation that operate fixed route and demand response service, or only fixed route service, are responsible for the reporting requirements in this chapter, but these requirements only apply to fixed route service. 6
Requirements for Fixed Route Transit Providers
Service and Fare Equity Analyses Only section where low-income is included Clearly defines when to do a Title VI analysis and when to do a low-income analysis Requires recipients to develop major service change policy, disparate impact policy, disproportionate burden policy, and evaluate adverse effects based on degree of impact Recipients may use population of service area or ridership for comparisons
Fare Equity Analysis Applies to all fare changes Regardless of amount Regardless whether increase or decrease Evaluate effect on low-income population and Title VI protected population 9
Fare Equity Analysis Exceptions Spare the air days Temporary fare reductions Promotional fare reductions 10
Final Circular 4703.1 Environmental Justice Policy Guidance for FTA Recipients January 2013
Principles of Environmental Justice To avoid, minimize, or mitigate disproportionately high and adverse human health and environmental effects, including social and economic effects, on minority populations and lowincome populations. To ensure the full and fair participation by all potentially affected communities in the transportation decision-making process. To prevent the denial of, reduction in, or significant delay in the receipt of benefits by minority and low-income populations. 12
Conducting an Analysis Know Your Community by analyzing demographic data Step 1 Step 2 Develop Public Engagement Plan that responds to community Consider Proposed Project & Likely Adverse Effects and Benefits Step 3 Step 4 Select alternative, incorporate mitigation as needed 13
Effects Disproportionately High and Adverse Effects Predominantly borne by an EJ population, or Appreciably more severe than suffered by the non-ej population Take into consideration mitigation and enhancement measures Based on totality of the circumstances (burdens and benefits) Reflects community input 14
Effects Borne By EJ Population? Questions to consider Whether the adverse effects on EJ populations exceed those borne by non-ej populations? Whether cumulative or indirect effects would adversely affect an EJ population? Whether mitigation and enhancement measures will be taken for EJ and non-ej populations? Whether there are off-setting benefits to EJ populations as compared to non-ej populations? 15
What about benefits? Direct user benefits Improved traffic circulation Direct employment (new jobs) Redevelopment opportunities Improved access to jobs within the corridor Improved access to retail, entertainment, restaurant, and other non-work related establishments 16
Determine Mitigation Avoid Alternative location Revise design/ Reconfigure facility or site Minimize Limitations during construction (e.g. night work, construction hours) Considerations during operations (e.g. limit operational periods) Mitigate Measures (e.g. sound walls, aesthetic treatments, etc.) 17
Public Outreach and Participation Reach out to minority and lowincome communities Contact social agencies and private organizations Provide opportunities for public input in addition to traditional open houses Advertise in target publications and community newsletters, other than in English Follow-up on suggestions gathered during public outreach activities. Make reasonable efforts to reach those affected by the proposed action Community Advocates HOW Community Advisory Councils Public Engagement Partnership With Community Groups Community Leaders Community Led Events Informal Group Meetings Nontraditional Public Engagement Direct Mail WHO Digital Media (Facebook, Twitter, email) 18
Transit Considerations in Planning Transit providers connect their studies and research on transit ridership and demand to Regional and Statewide planning to best inform the transit element of multi-modal plans Transit Development Plans fit into Regional and statewide plans Engage EJ populations on issues of future transit service, especially if reductions are possible 19
Adapting EJ Analysis to NEPA Environmental review is required for all Federally-funded projects and includes: Reviewing important adverse effects of the project to determine whether those adverse effects are significant; Determining whether adverse effects can be avoided, minimized, or mitigated; and, Assessing the Project s benefits versus its burdens on the environment. 20
Practice Pointers In EAs and EIS s, environmental justice should be discussed in its own chapter Your EJ analysis should be consistent with the rest of the NEPA analysis Benefits of project should be more than just EJ populations will benefit from more transit options. What if my study area includes a majority EJ population? 21
Bruce M. Smith bsmith@appersoncrump.com
Indeed, compliance with Title VI is especially important when launching service or fare changes that may be necessitated by financial difficulties. An environmental justice analysis is not a substitute for a Title VI service equity analysis triggered by a major enhancement project; rather the environmental justice analysis and the Title VI analysis complement one another.» FTA Administrator Peter Rogoff» (emphasis in original)
Lack of adequate notice of the proposed action Notices of public hearings contain incomplete, inaccurate or misleading information Failure of decision-making body to meaningfully consider public comments Failure of decision-making body to consider feasible alternatives Disparate impact--providing more funding to a particular mode (e.g., rail vs. bus)
Disparate impact agency provides more (or less) service to a particular geographic area(s) Inadequate Limited English Proficiency program Transit agency allegedly overstates the budget shortfall
Plaintiffs were a class of racial minority groups who rode buses operated by AC Transit. Plaintiffs sued the Metropolitan Transportation Commission (the MPO), claiming that MTC s disproportionate emphasis on rail expansion projects over bus expansion projects in its Regional Transit Expansion Plan illegally discriminated against minorities. The purpose of the lawsuit was to obtain more funding for AC Transit, who was not sued.
Plaintiffs claimed that the RTEP has a disparate impact on minorities, that Bay Area rail service predominantly favored white riders and that MTC had a history of favoring rail expansion over bus expansion. Minorities constituted 66.3% of Bay Area bus riders 51.6% of rail riders are also members of racial minority groups. The Ninth Circuit rejected Plaintiffs argument that the key was the impact of the RTEP on the minority population of AC Transit bus riders or on minority bus riders.
MTC s RTEP does not affect solely bus riders or solely AC Transit riders it affects an entire integrated transit system s users we must analyze the impact of the plan on minorities in the population base affected by the facially neutral policy. Plaintiff s statistics did not address the particular ridership of the planned bus and rail expansions. Simply because minorities represent a greater majority of bus riders as opposed to rail riders, the rejection of a particular new bus expansion project in favor of a new rail expansion project will not necessarily work to the detriment of minorities. It is a real possibility that a particular bus project supported by AC Transit-- will serve a largely white ridership. On the other hand, a rail
(cont d) expansion project may benefit minority riders more than white riders by serving areas with high concentrations of minorities, and integrating them more fully into the regional rail system. In fact, although AC Transit s ridership may have a higher percentage of minorities, BART annually carries over two million more minority riders than AC Transit. It is entirely plausible that an RTEP with a heavy emphasis on rail could significantly benefit Bay Area minorities. However, a court simply could not determine from Plaintiffs statistical evidence whether the Projects in the RTEP will benefit or harm the Bay Area s minority transit riders. Plaintiffs failed to provide statistical evidence that the RTEP would have an adverse effect on minorities.
MTA contended that it had a $2.8 billion budget shortfall. Plaintiff s contended that MTA s notices of public hearings contained incomplete, inaccurate and misleading information, and thus stifled public discussion of options for closing MTA s budget gaps. Plaintiff s contended that the budget shortfall was less than $2.8 billion and that the notices discouraged persons and government leaders from appearing at public hearings to suggest alternatives to the fare and token increases and token booth closings ultimately adopted by MTA. The trial court agreed that the legal notices were technically compliant with applicable legal requirements, but nonetheless sides with Plaintiffs and ordered a roll back of the fare increases and token booth closings. MTA was ordered to reimburse the overcharged fares and tolls.
The appellate court sides with MTA, and dismissed the lawsuit. The appellate court ruled that the legal notices complied with applicable statutory and regulatory requirements, and that it was undisputed that a very significant budget shortfall existed. Since the law places the ultimate decision on how to balance MTA s budget within MTA s judgment, a direct attack on those decisions is not possible. The statutes provide very little as to the content of the legal notices, and nothing as to the amount or kind of information as to MTA s budget processes or rationales that must be provided to the public. MTA met the statutory requirements. It is not to any court to engraft additional requirements onto those the Legislature determined are appropriate. While from the public s perspective greater transparency as to MTA s budgeting processes may be desirable and may foster more robust public debate, such requirements would impose additional administrative burdens and costs. The Legislature has determined what is required; any changes are a political decision.
This case was decided under a section of the Federal Transit Act that has since been repealed. MARTA was legally required to balance its budget. To do so, it raised fares. The City of Atlanta claimed that because of conflicts between state and local law, MARTA had no other choice but to raise fares. The Fifth Circuit found that there was no unavoidable conflict between federal and state law. Budgetary limitations, total receipts and costs may necessitate a fare increase. Yet, MARTA retained the discretion to avoid any fare increase by reducing services or other expenses. MARTA was not precluded from considering environmental, social and economic impacts of a fare increase.
Embrace public participation. Periodically review and update public participation protocols, including LEP program. Give notice of proposed fare and service changes in many formats and mediums. At the outset of planning for a proposed change, consider the agency s Limited English Proficiency (LEP) program. Utilize your citizen s advisory group early on, including as a means of determining how notice should be given and locations for public hearings and public forums. Realize that there are lawyers who are ready, willing and able to challenge the ultimate decision. Ensure that written comments and comments received electronically are considered.
Seriously consider all meaningful (non-frivolous) comments received in the public participation process. Educate board members and other decision-makers Ensure that written comments (hard copy and electronic) are included in the consideration of public comments. Do not always hold public hearings and forums in the same location. Develop documentation of sending legal notices to advocacy groups and special interest groups. Consider a program of fare increases and service changes implemented in phases over time.