Highways and Environmental Justice

MAY 16, 2022   /  KATHERINE COOMBS

 

Since the 1950s, U.S. transportation policy and highway siting decisions intentionally have targeted poor, Black communities across the country for transportation development projects. Despite the development of regulations and executive orders on environmental justice that mandate community involvement in transportation planning, highways and transportation development projects are still being sited in these communities today. The Black Lives Matter Movement has captured the attention of the nation and of the incoming president, who has shared policy initiatives that mark a promising path forward for groups opposing highway development.

This paper is about the racist practice of federal, state, and local governments in siting major highways through Black communities across the country. Section I provides background on fraught U.S. transportation policy and highway planning history that resulted in a majority of highways being sited in low-income communities and communities of color nationwide. Section II describes the subsequent creation of federal laws and regulations focused on public involvement and justice. Section III explores the emergence of advocacy organizations aimed at meaningful legal and regulatory enforcement to prevent highway siting. The paper concludes that federal laws and regulatory enforcement failed to prevent highway development in the Black community in the 1950s and continue to fail to protect the Black community from highway expansion projects today.

I. OVERVIEW

After World War II, the American economy was booming. People across the country were buying cars, televisions, and automobiles, having kids, and moving to the suburbs. To accommodate increased traffic on the roads, highway construction projects became a top federal priority. In 1944, Congress passed the Federal-Aid Highway Act of 1944, which created a national system of interstate highways and initiated the federal government’s role in planning a national highway system.[1] The Act provided that the federal government would contribute fifty percent of construction costs for new highways.[2] Following this Act, state highway agencies prepared their first comprehensive highway plans for urban areas, indicating preliminary locations of proposed interstates.[3]

In 1956, Congress passed the Federal-Aid Highway Act of 1956, which launched the Interstate Highway Program and heavily financed its construction.[4] The 1956 Act increased the federal share of highway construction costs from fifty percent to ninety percent and established a financing mechanism for the program, the Highway Trust Fund, which generated revenue from taxes on highway users.[5] The 1956 Act tasked the Federal Bureau of Public Roads with routing freeways, which shifted planning oversight from local governments to federal and state transportation officials.[6] Importantly, the 1956 Act also amended the existing requirement that states hold a local hearing if a federally funded road will bypass a population center.[7] Unfortunately, Congress attached no substantive requirement to its hearing demands.

Over the next decade, state and federal highway officials prioritized routes that were the least expensive and the most efficient, implementing their plans without input from the communities through which highways were being routed.[8] Highway engineers and consultants worked with local civic elites to determine new interstate routes in America’s cities.[9] Even though feedback mechanisms for communities to review projects did exist, city officials quickly accepted funding without providing any opportunity for meaningful municipal review.[10] Also in many cities, state highway departments had moved quickly to acquire and clear their urban interstate corridors before the Department of Transportation (DOT) could call for a review or stop the project from moving forward.[11]

After the landmark 1956 interstate highway legislation, highway officials implemented expressway plans that destroyed enormous amounts of low-income, inner-city housing, especially in Black neighborhoods.[12] Land acquisition costs in Black neighborhoods were generally cheaper and political opposition was minimal, especially in southern cities.[13] Highway construction in the 1950s resulted in a litany of detrimental impacts on Black communities across the country, as transportation planning formalized and naturalized structural racism and created persistent patterns of segregation that remain today.[14] New highways and the demolition of housing units in urban areas physically and culturally disrupted Black communities across the country.[15] Black individuals were displaced from their homes, and after highway projects destroyed their homes, they faced challenges finding safe and sanitary housing to replace what had been taken through eminent domain.[16] Additionally, in many cities, highway plans were announced long before construction would begin, resulting in significant drops in property values, that caused demoralized homeowners and business people to lose incentive to make repairs to their properties, leading to even worse neighborhood conditions and lower property values.[17] Today, gentrification continues to threaten availability of safe and affordable housing for Black individuals.

Highway siting in Black neighborhoods has also contributed to negative health effects resulting in racial health disparities. Communities of color have been exposed to elevated levels of air, water, and noise pollution, resulting in racial health disparities.[18] In neighborhoods with high concentrations of people of color, air pollution concentrations routinely exceed regional averages.[19] One study suggests that transportation policies of the 1950s and 1960s, which supported highway system expansions and sited heavily traveled roads through low-income neighborhoods in Detroit, led to residents having higher risks for a variety of diseases.[20] Pollutants from cars, buses, and trucks are associated with health conditions like impaired lung development and function in infants and children, and with asthma, lung cancer, heart disease, respiratory illness, and premature death.[21]

Despite the rising toll of community disruption, housing demolitions, and negative health effects from urban highway building on the Black community, politicians, planners, and road engineers continue to build and expand highways in Black neighborhoods today. Despite increasing awareness of environmental justice and legislation designed to arm Black communities with tools like having a say in highway projects that have disparate impacts on their communities, federal laws and regulations do little to stop highways from expanding. Freeway revolts of the 1960s helped rein in the expressway-building regime, as groups like Citizens to Protect Overton Park used litigation in the courts to stop a highway from being sited in their communities. However, freeway revolt successes varied from city to city, depending on political circumstances, bureaucratic policy shifts, the strength of citizen opposition, and judicial decision-making.[22] For example, freeway revolts in Memphis and Nashville demonstrated how the interplay of these forces shaped outcomes and are relevant to successes in the freeway opposition movement in Portland, Oregon today.

II. REGULATORY FRAMEWORK

 Section II describes the creation of federal laws and regulations focused on public involvement and environmental justice. Section A describes the federal environmental justice regulatory framework under Title VI and Executive Order 12898 and analyzes the success of each tool for communities seeking to prevent highway development projects. Section B describes the environmental justice orders by the U.S. Department of Transportation and Federal Highway Administration.

A. Environmental Justice Regulatory Framework

This section describes Title VI and Executive Order 12898, which underlie the doctrine of environmental justice, and analyzes the success of each tool for communities seeking to prevent highway development projects.

1. Title VI of the Civil Rights Act of 1964

Title VI of the Civil Rights Act of 1964 is one of the leading authorities underlying the doctrine of environmental justice.[23]  Title VI prohibits discrimination based on race, color, and national origin in programs and activities receiving Federal financial assistance.[24] Specifically, Title VI 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.”[25] Prohibited discrimination includes denying benefits or services, providing inferior benefits or services, or otherwise treating someone differently in the provision of benefits or services because of race, color, or national origin.[26] For example, a Title VI violation would occur if a state transportation agency decided to provide replacement housing to white individuals but not to people of color being displaced because of a highway project.[27]

To comply with Title VI, state departments of transportation are required to use a range of measures. State highway agencies are required to have an adequately staffed civil rights unit, have procedures to address civil rights complaints and collect statistical data on protected populations, conduct annual reviews of programs, provide training for staff to explain Title VI obligations, and submit annual updates to the regional federal highway administration offices.[28] The federal government clarified Title VI requirements relating to transportation issues through the issuance of Executive Order 12898 and DOT guidance.

Title VI has been a successful tool in some highway siting cases; however, limitations on the individual’s right to enforcement have made the Act less effective. In 2001, the Supreme Court in Alexander v. Sandoval ended the ability of private individuals to bring a lawsuit to enforce disparate impact discrimination under Title VI.[29] Now, individuals may only bring lawsuits charging that action was taken intentionally to discriminate. Individuals can no longer rely solely on statistical evidence to show that an action had a disparate impact on persons of a specific race, color, or national origin.[30] However, federal agencies can still enforce regulations by suspending or terminating funding to obtain compliance with Title VI or seek equitable relief, like an injunction.[31] This change means that the federal government needs to more rigorously enforce Title VI because individual lawsuits are now severely limited.[32]

2. Executive Order 12898 on Environmental Justice

 President Clinton’s 1994 Executive Order 12898 was the first major federal action on environmental justice in the United States. The executive order was designed to focus federal attention on human health and environmental conditions in minority and low-income communities.[33] The order also intended to foster nondiscrimination in federal programs that substantially affect human health and the environment and provide minority and low-income communities greater public participation opportunities and access to information.[34]

The executive order sets forth various standards and requirements for federal agencies to follow and satisfy. First, agencies were required to develop an environmental justice strategy and identify and address disproportionately high and adverse human health or environmental effects of their programs, policies and activities on minority and low-income populations.[35] Second, the executive order requires each federal agency to apply the Title VI principle of nondiscrimination in its programs and activities.[36] Third, the executive order requires federal agencies to collect and analyze data for determining whether their programs have a disproportionate impact.[37] Fourth, to ensure adequate public participation and access to information, the executive order required agencies to solicit public recommendations in developing and implementing environmental justice strategies.[38] Agencies also must translate crucial public documents and ensure these documents are concise, understandable, and accessible to all communities and minority populations.[39]

Although the executive order seeks to rectify environmental problems that have disproportionately impacted minority and low-income populations, the executive order is only symbolically important for these communities and often leaves them with no real opportunity to prevent highway development. First, the executive order does not define or set a standard for determining which populations are considered minority or low-income or which communities are disproportionately impacted by environmental risk. Agencies are required to identify these communities themselves.[40] Second, while the executive order sets forth a number of requirements that would seem to alleviate environmental justice concerns, the executive order is non-binding and legally unenforceable.[41] The executive order relies entirely on internal enforcement and does not create a right to sue the government or allow for judicial remedies when agencies fail to comply with the executive order.[42] Third, the executive order only requires agencies to consider environmental justice concerns and the effects of their programs and policies but does not require the agency to grant that analysis any weight in their rulemaking decisions.[43] Because the order is not enforceable, it has not had much of an impact in creating change. The executive order is merely a symbolic federal acknowledgement of the environmental justice movement.

B. Environmental Justice Regulatory Framework Applied to the Transportation Sector

Following Executive Order 12898, the DOT and the Federal Highway Administration (FHWA) issued environmental justice orders establishing policies and procedures for identifying and addressing the potential effects of transportation projects on minority and low-income populations.[44] This section describes those orders, DOT Order 5610.2(a) and FHWA Order 6640.23A, and then explores the effectiveness of both orders as a tool for challenging highway siting decisions.

1. DOT Environmental Justice Order 5610.2

In 2012, the DOT issued DOT Order 5610.2(a), Department of Transportation Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (DOT EJ Order), updating the original order issued in 1997.[45] The DOT EJ Order requires DOT administrators to fully consider and incorporate environmental justice (EJ) principles into existing programs, policies, and activities. The DOT EJ Order also sets forth the procedures and guidelines for the agency’s implementation of Executive Order (EO) 12898 and establishes the framework for identifying and addressing disproportionately high and adverse impacts in minority and low-income populations.

The DOT EJ Order sets forth guidance for determining whether a DOT program, policy, or activity is likely to have disproportionately high and adverse effects on minority or low-income populations. In determining whether an effect is “disproportionately high and adverse,” the DOT EJ Order notes that practitioners may take the following into account: planned mitigation measures, offsetting benefits to the affected minority and low-income populations, the design, the comparative impacts, and the relative number of similar existing system elements in non-minority and non-low-income areas.[46] US DOT’s list of adverse effects includes air, noise, and water pollution; and soil contamination; bodily impairment, illness, or death; displacement of persons or businesses; and vibration, increased traffic congestion, isolation of individuals from their broader community, and destruction or disruption of community cohesion or the community’s economic vitality.[47]

The DOT EJ Order provides guidance on how to prevent disproportionately high and adverse effects to minority or low-income populations through Title VI analyses and environmental justice analyses as a part of Federal transportation planning and NEPA provisions.[48] DOT officials are required to implement mitigation measures and consider alternatives that would avoid or reduce any disproportionately high and adverse effects of one of their programs or policies.[49] Mitigation measures may include pollution prevention, health and safety measures, measures to maintain community cohesion and economic vitality, and mitigation and compensatory measures. This process includes procedures to provide meaningful opportunity for public involvement by minority and low-income populations, including input in identifying potential mitigation measures for DOT actions.[50] The DOT EJ order also requires the agency to provide the public access to information concerning the health and environmental impacts of its policies and actions.[51]

2. FHWA Order 6640.23A

 In 2012, FHWA issued FHWA Order 6640.23A (FHWA EJ Order), which explains the agency’s environmental justice policy and how environmental justice relates to a broad range of FHWA activities.[52] Like the DOT EJ Order and EO 12898, environmental justice at the FHWA means identifying and addressing disproportionately high and adverse effects of the agency’s programs, policies, and activities on minority and low-income populations to achieve an equitable distribution of benefits and burdens.[53] The FHWA EJ Order requires the agency to consider environmental justice in all phases of project development, including planning, environmental review, design, right-of-way, construction, and maintenance and operations.

The FHWA EJ Order puts forth how the agency will identify and avoid discrimination against environmental justice communities. First, the FHWA will identify and evaluate environmental, public health, social, and economic effects of FHWA programs, policies, and activities.[54] Second, the FHWA will propose measures to avoid, minimize, and/or mitigate disproportionately high and adverse environmental effects and provide offsetting benefits and opportunities to communities affected by FHWA policies.[55] Third, the FHWA will consider alternatives to proposed programs, policies, and activities, if the alternatives would result in avoiding or minimizing disproportionate adverse impacts to environmental justice communities.[56] Lastly, FHWA will provide public involvement opportunities by sharing information with the public, soliciting input from minority and low-income populations, and taking community input into consideration when making decisions about potential alternatives for projects.[57]

3. DOT and FHWA Policies are an Ineffective Tool for EJ Communities

Like EO 12898, the environmental justice regulations at the DOT and FHWA are not legally enforceable and, therefore, are more symbolic than useful to low-income and minority communities seeking to prevent highway construction in their neighborhoods. Transportation planning agencies use these environmental justice regulations and guidance to develop regional equity analyses, but neither order creates a legal basis for assessing compliance with their provisions or prescribes analytical standards and methods.[58] This lack of specific guidance has resulted in a situation where the state’s completion of any analysis is considered sufficient for compliance.[59] For example, one study notes that states receiving federal funds, in most cases, simply submit a single-page document assuring their compliance with DOT regulations, without any accompanying evidence to support their assurance.[60] Additionally, the DOT EJ Order requires implementation of mitigation measures and consideration of alternatives, which gives communities an opportunity to lobby for changes to highway construction that might do less damage, but the environmental justice orders are not designed to prevent highway development. These orders on environmental justice are well intended yet often ineffective, since much of the division and damage to these communities from highways has already been done.

III. CASE STUDY

Section III explores the emergence of advocacy organizations aimed at meaningful legal and regulatory enforcement to prevent highway siting. First, the section describes one group’s success in preventing highway development at Overton Park in Memphis, Tennessee and compares that to a failed challenge to a highway development project in Nashville, Tennessee. The section also explores how key takeaways from Memphis and Nashville can be applied to the freeway opposition movement happening in Portland, Oregon today.

A. A Success Story: Citizens to Preserve Overton Park

The case Citizens to Preserve Overton Park v. Volpe represents effective public participation and successful community opposition to a highway development project in Memphis, Tennessee. In the 1950s, planners who created the Interstate Highway System began planning for the city’s expressway system and decided to build a six-lane highway that would bisect twenty-six acres of Overton Park. Overton Park was the city’s principal green space, spanning 342-acres. From the beginning, state highway officials and members of the Tennessee government were the most persistent advocates of putting I-40 through Overton Park because it would be the cheapest, most direct route that served the most traffic. As a legal matter, these state offices and officials were primarily responsible for making routing decisions and conducting any public hearings that concerned those decisions.[61]

As early as 1956, citizens learned that Interstate 40 would bisect Overton Park and community opposition to stop highway construction began. In April 1957, the Memphis City Commission held a public information meeting on the planned Memphis Interstate System.[62]  A few days before this meeting, a map of the proposed network featuring the Overton Park expressway was published in Memphis’s leading newspaper. The visual evidence of the expressway’s destructive path spurred public discontent and outrage and sparked the anti-freeway Committee into action.[63] Committee leaders sent out flyers encouraging the community to attend and ultimately gathered 300 protesting citizens and over 10,000 signatures on petitions opposed to the use of the park.[64]

In 1964, when a team of highway engineers arrived in Memphis for final design work on the Overton Park segment of the I-40 expressway, the anti-freeway Committee reorganized under the new name Citizens to Preserve Overton Park (CPOP) and began mounting opposition to highway construction plans. CPOP sought to engage politically at every level to protect the park, with litigation as the last alternative.[65] CPOP lobbied the city government and ultimately captured the attention of relevant city figures like the Park Commission, the Shelby Forest Council, a number of City Commissioners, and the Memphis Mayor, who all said they preferred that Overton Park not be used.[66] In the fall of 1964, CPOP met with the Tennessee Governor and David Pack, the state highway commissioner. Pack agreed to consider two alternative routes that would avoid the park, but a month later he confirmed his support for the Overton Park expressway.[67] The Tennessee Governor consistently supported the Overton Park expressway and stubbornly resisted the outpouring of concern expressed in petitions and letters from opponents of the Overton Park expressway. After limited success with the highway agency and governor’s office, CPOP leaders moved on to the state legislature and persuaded a Memphis area lawmaker to introduce a bill to protect Overton Park.[68] The measure had some initial enthusiasm, but the Memphis news media blasted the idea and scared off its supporters, who feared for their political careers.[69]

CPOP leaders recognized that federal legislation, executive decision making, and bureaucratic policies and producers of federal highway agencies often determined state and local highway outcomes, so the organization embarked on a letter-writing campaign.[70] The letter-writing campaign persisted into the 1970s and focused on key federal highway officials, congress people, senators, and presidents.[71] CPOP leaders became familiar with decision makers in the Bureau of Public Roads, the Federal Highway Administration, and the Department of Transportation, and they even travelled to Washington DC to make the case for Overton Park in person.[72] They appealed state and federal highway decisions, requested new hearings or additional reviews, promoted alternative routes, and offered new corridor and design features.[73] Virtually all of the top federal highway leaders from 1964 into the 1970s visited Memphis to inspect the Overton Park road corridor and confer with city and state officials.

CPOP also connected with citizen groups in other cities that were fighting state and federal highway officials.[74] They compared notes, discussed various opposition strategies, shared successful legal options, and compared ways of cooperating politically in the highway fight.[75] CPOP leaders found new allies for saving Overton Park in environmental groups like the Sierra Club, the National Audubon Society, and more. These groups later contributed financially to CPOP’s litigation against the Overton Park expressway and joined the lawsuit.[76]

CPOP leaders exhausted their administrative appeals and other delaying tactics and sought a lawyer to take their case to the courts. In November 1969, the Secretary of Transportation John Volpe gave federal approval for the project, including routing through the park. Volpe’s announcement was not accompanied by factual findings or any other indications why the Secretary believed there were no feasible and prudent alternate routes or that design changes could not be made to reduce harm to the park.[77] CPOP, private citizens, and local and national conservation organizations brought suit seeking a construction halt, arguing that feasible and prudent alternatives did exist.[78] CPOP based their legal strategy on a provision of the Department of Transportation Act of 1966, which prohibited the Secretary of Transportation from authorizing the use of federal funds for highways through public parks of federal, state, or local significance “only where there was no feasible and prudent alternative and all possible planning was employed to preserve the parkland.”[79] This provision temporarily prevented distribution of federal funds for the section of the highway designated to go through Overton Park; however, federal funding was available to the remainder of the project and the state acquired a right-of-way on both sides of the park.[80] After their requests for a preliminary injunction were denied by the district court and the court of appeals because what was “feasible and prudent” was a determination left to agency discretion, they sought and received Supreme Court review.[81]

The United States Supreme Court granted certiorari and focused its study on the scope of judicial review that would be allowable by judicial bodies regarding the authority granted to the Secretary of Transportation. The Court held that Volpe’s actions were subject to judicial review and interpreted the federal statutes as providing that parklands had to be spared from highway construction in all “but the most unique situations.”[82] The Court reversed the lower courts’ holdings, remanding the action to the District Court for a more thorough review of the Secretary of Transportation’s decision. While additional hearings followed the Supreme Court’s holding, Secretary Volpe eventually reversed his initial plans, finding that there were feasible alternative routes for the stretch of I-40 through Memphis.[83] Despite the Supreme Court’s defense of public parkland and Volpe’s shutdown decision in 1973, the legal dispute over Overton Park continued until 1981, when the Tennessee Department of Transportation requested that the Overton Park expressway funding be transferred to other transportation needs in Memphis.[84] The highway was re-routed and Overton Park was saved from development.

B. A Not-So-Successful Story: Nashville I-40 Steering Committee v. Ellington

The Overton Park case study illustrates the ideal public participation scenario, where participants were able to successfully lobby local, state, and federal government, change plans for a highway development project, and prevent their community from being destroyed. However, opposition against construction of the same freeway in Nashville, Tennessee failed because the Black community it threatened to destroy was deceived by highway planners and excluded from providing input on the project. Despite public participation requirements established by state and federal transportation agencies[85], these two cases show starkly different outcomes for the two groups. One, predominately white-led, protecting an environmental interest and the other, Black-led, protecting a Black community.

In Nashville, Tennessee the freeway revolt came late and did not last long.[86] The I-40 Steering Committee, North Nashville’s first cohesive effort to fight the planned expressway, formally organized in October 1967, and their fight was over by December of the same year.[87] The I-40 Steering Committee started to organize when the state of Tennessee began acquiring property in North Nashville.[88] They learned of the state’s plan to construct a 2.5-mile expressway that cut directly through the Black business district with 128 Black-owned businesses, 620 Black owned-homes, twenty-seven apartment houses, and six Black churches.[89] It threatened to dead-end fifty local streets, disrupt traffic flow, and bring noise and air pollution to the community.[90]

I-40 Steering Committee leaders believed that white racism dictated the location of the expressway, so they took political action to try and stop the highway construction. First, they met with the Nashville Mayor, who took a hands-off approach to the expressway. I-40 Steering Committee leaders also met with state highway officials and sent telegrams to the Tennessee Governor and key federal highway officials, emphasizing the damaging impact of the interstate on the Black community and urging a ninety-day delay in initiating highway construction so other alternatives could be studied.[91] Like CPOP, I-40 Steering Committee leaders traveled to Washington, DC and met with officials in the Federal Highway Administration and the Bureau of Public Roads. They even contracted with a city planner to develop a new alternative expressway route and proposed it to the DOT Secretary within one month. However, the DOT Secretary never seriously considered the plan.

Anticipating this result, the I-40 Steering Committee hired an attorney and filed suit in the US District Court in Nashville requesting an injunction to temporarily stop the road builders. The suit rested on two major issues. First, they argued that the 1957 public hearing on I-40 expressway plans did not meet legal requirements since public notification was inadequate, the date of the hearing was erroneous, and the transcript of the tape-recorded hearing was incomplete.[92] Black residents were also never informed about the hearing or the planned route, so they never had an opportunity to speak on the record to challenge the state’s plans or defend their neighborhood.[93] Second, they argued that the routing of the North Nashville expressway was racially discriminatory on the grounds of the race, color, and socio-economic conditions of the plaintiffs.[94] Despite expressway opponents’ strong case, the judge denied the request for an injunction because the public hearing met the basic public requirements and plaintiffs had not proven a deliberate purpose to discriminate against the residents of North Nashville on the basis of race or socioeconomic condition.[95] The I-40 Steering Committee appeal was denied by the Sixth District Court of Appeals on December 18, 1967 and ten days later the U.S. Supreme Court refused to hear the case.[96] Within hours of the Supreme Court decision, the Tennessee road department unleashed its bulldozers.[97]

C. Key Takeaways from Memphis and Nashville

Timing was a significant factor in the success or failure of a freeway revolt, and persistent citizen activism over the long term made a real difference. The state’s expressway plans and the first public hearings for Memphis and Nashville were both developed at the same time.[98] However, in the Overton Park case, early citizen opposition was a key to success. Citizen opposition began early in Memphis, with a large public turnout at the first public hearing in 1957, and activism continued for decades following. In Nashville, the freeway revolt came much later because the state road department deceptively kept route details from the community.

Timing was also important because the Nashville freeway revolt was short and basically ended by December 1967. In Memphis, however, freeway opponents successfully delayed, appealed, and postponed from 1964 to 1969. By doing so, they were able to take advantage of new federal legislation that required two public hearings and protected parks and historic districts. The I-40 Steering Committee’s decision to make racial discrimination a foundation of its case might have had more success a few years later, but there were still no legal prohibitions against routing highways through residential neighborhoods. Additionally, CPOP in Memphis benefitted from its wide-ranging connections with freeway fighters in other cities, whereas Nashville’s I-40 Steering Committee operated in isolation.[99] The I-40 Steering Committee was reluctant to work with more militant Black groups in the city to their detriment, because this undermined the potential power of the Nashville freeway revolt. Had they linked their cause with these groups, they could have capitalized on the Black power movement that had become dominant in American cities in the late 1960s.[100]

D. Public Participation in the Future and Freeway Expansion in Portland, Oregon

Since planning for highway development projects began in the early 1950s, public participation efforts in transportation have evolved from an early period of stark injustice to include some promising outcomes aimed at inclusivity.[101] The profound shortcomings of early efforts were on display during the construction of the interstate highway system, when requirements for public participation were limited to a single hearing in which state department of transportation representatives announced a highway had been sited and construction was planned.[102] In 1969, after widespread negative reactions to this policy, the requirements were increased to two hearings.[103] However, the damage was already done to low-income and communities of color as highways were built through their communities, causing displacement and community fragmentation.

Today, the transportation planning process is required to occur in consultation with affected communities, with opportunities for meaningful, early, and frequent involvement of the public and disadvantaged populations.[104] Meaningful involvement is a process that seeks to provide the opportunity for individuals to change the outcome of a particular course of events or projects, instead of the historic model of a simple one-way flow of information from the agencies to the public.[105] There have been some promising practices in meaningful involvement, where freeway teardowns or reconstructions involve robust public engagement efforts.[106] For example, the I-5 expansion project in Portland, Oregon illustrates how robust public engagement efforts against a freeway project can surface alternatives that would otherwise not be considered and could lead to an improved plan, better project performance, and superior outcomes for the community the freeway destroyed in the 1950s.

The Oregon Department of Transportation’s (ODOT) plan to add lanes to the I-5 freeway through a historically Black neighborhood has been the focus of intense public opposition for much of the past few years. The freeway opposition movement mirrors the successes from Overton Park in the way that many community groups are coming together around the shared interest of preventing freeway expansion. Groups opposing freeway expansion include No More Freeways PDX, the neighborhood group Albina Vision Trust, climate activist groups, and Portland Public Schools.[107] Additionally, like the successful Overton Park case study, the freeway opposition movement in Portland has gained support from state and local politicians, including the Portland Transportation Commissioner, the Portland Mayor, Oregon Speaker of the House, the Metro Council President, and the Multnomah County Commissioner.[108] Oregon Governor Kate Brown has also expressed concern for the project and requested that ODOT delay the project. These individuals have come together and successfully delayed the I-5 expansion in their demands for ODOT to conduct a comprehensive environmental assessment, even though the project is moving forward without an Environmental Impact Statement (EIS). As illustrated in Memphis, it is important that the project has captured the attention of a diverse group of stakeholders, which was a key to success in preventing highway development at Overton Park.

Overton Park freeway opposition was also successful because it capitalized on the environmental movement of the 1970s, fitting in with the current events and major US policy shifts. The Black Lives Matter movement could lead to important successes for the Portland freeway opposition movement. Since the murder of George Floyd in May 2020, the Black Lives Matter Movement has captured the attention of most Americans, and especially in Portland, where there have been nightly protests demanding justice and equality. During this time, Portlanders are learning more about how the Black community was divided by freeway development, urban renewal, and gentrification. There is no better time for ODOT, city, and state officials to listen to the ideas and input of Albina Vision Trust to rebuild the historically Black Albina neighborhood.

Governor Kate Brown encouraged ODOT to work with community stakeholders to discuss mitigation solutions that would reduce adverse effects of the I-5 freeway expansion and diffuse opposition to the freeway project. Stakeholders include representatives from Albina Vision Trust, officials from Metro, and the City of Portland. Albina Vision Trust is interested in robust freeway caps that could accommodate new development and better connect neighborhoods on both sides of I-5.[109] Planning for highway caps to reconnect the Albina neighborhood is a positive impact stemming from public participation and community opposition to the I-5 expansion project. Even though the law does not address the siting of I-5 through the Albina neighborhood and is not designed to fix any of the decades of damage done to communities by this project, the DOT requirement to implement mitigation measures could lead to a positive outcome in the Albina neighborhood.

Lastly, the FWHA’s environmental justice policy proved to be an ineffective tool for Portland’s freeway opposition movement. In compliance with the FWHA EJ Order, ODOT was required to develop and submit an environmental justice technical report. The EJ technical report assessed a range of environmental issues to determine the potential for disproportionate adverse effects on EJ populations, studying air quality, hazardous materials, land use, noise, socioeconomics, and more.[110] Despite this extensive reporting, the project only found one adverse impact to environmental justice communities regarding access to bus routes, even though many environmental groups argue that highway expansion will create more air pollution and health impacts for people living close to the highway. Under the current environmental justice regulatory framework, simply creating the report is sufficient for compliance.

IV. CONCLUSION

Title VI, EO 12898, DOT EJ Order, and the FHWA EJ order are important symbolically for environmental justice communities but often leave these communities with no real opportunity to prevent highway development. Based on a review of adjudicated highway cases, public participation can be a meaningful tool for communities to stop or improve outcomes of highway development projects. The successful freeway opposition movement at Overton Park teaches that early and persistent community involvement will have the most impact, but today, the damage to many communities has already been done. Since Overton Park, public participation strategies have improved as a result of environmental justice efforts at the executive level and in federal agencies responsible for highway development and construction. But these efforts do not ensure that community input will always be taken into account.

The biggest criticism of environmental justice policies is that because most policies are legally unenforceable, the policies are ineffective tools for communities to use in combating highway development projects. The Biden Administration has policy initiatives that mark a promising path forward. First, Joe Biden has promised to implement Senator Cory Booker’s Environmental Justice Act of 2019 to the greatest extent possible by executive action.[111] Joe Biden has also promised to hold federal agencies accountable for Title VI enforcement, including reinstating a private right of action to sue under Title VI by overruling Alexander v. Sandoval.[112] The Black Lives Matter movement and nationwide calls for racial justice have caught the attention of the incoming president. With Biden’s policy changes, hopefully freeway opposition groups will have more effective tools available to prevent more highway development in their neighborhoods, even though the laws do nothing to rectify the injustices of highways being built there in the first place.

 

Endnotes

[1] Joseph F. DiMento, Stent or (Dagger?) in the Heart of Town: Urban Freeways in Syracuse, 1944-1967, Journal of Planning History, Vol. 8, No. 2, 133, 136 (2009).

[2] Id.

[3] Id.

[4] Federal-Aid Highway Act of 1956, Pub. L. No. 627, 84th Cong., 2nd sess. (June 29, 1956), 109.

[5] Richard F. Weingroff, The Genie in the Bottle: The Interstate System and Urban Problems, 1939-1957, Public Roads, Vol. 64, No. 2 (2000).

[6] Susan Fainstein, Restructuring the City: The Political Economy of Urban Redevelopment (1983).

[7] Peter L. Strauss, Citizens to Preserve Overton Park v. Volpe, Administrative Law Stories, Peter L. Strauss, Ed., Foundation Press, 2006.

[8] Richard Ezike, et al. Defining “Communities of Concern” in Transportation Planning: A Review of How Planners Identify Underserved Communities, Urban Institute (August 2020), available at: https://www.urban.org/sites/default/files/publication/102746/defining-communities-of-concern-in-transportation-planning_1.pdf.

[9] Raymond A. Mohl, The Interstates and the Cities: Highways, Housing, and the Freeway Revolt, Poverty & Race Research Action Council Civil Rights Research (2002), available at https://www.prrac.org/pdf/mohl.pdf [hereinafter Interstates and the Cities].

[10] Id.

[11] Raymond A. Mohl, Citizen Activism and Freeway Revolts in Memphis and Nashville: The Road to Litigation, Journal of Urban History, 40(5), 870, 873 (2014) [hereinafter Citizen Activism].

[12] Mohl, Interstates and the Cities, supra, note 9.

[13] Id.

[14] Id.

[15] Id.

[16] David Karas, Highway to Inequity: The Disparate Impact of the Interstate Highway System on Poor and Minority Communities in American Cities, New Visions for Public Affairs, Vol. 7, 9, 13-14 (2015).

[17] Id.

[18] Thomas W. Sánchez, et. al. Moving to Equity: Addressing Inequitable Effects of Transportation Policies on Minorities, The Civil Rights Project at Harvard University (2003), available at http://www.civilrightsproject.harvard.edu. [hereinafter Moving to Equity].

[19] Miranda R. Jones, et al. Race/Ethnicity, Residential Segregation, and Exposure to Ambient Air Pollution, Am. J. Public Health, 2130, 2131 (2014).

[20] Sánchez et al., Moving to Equity, supra, note 18.

[21] US Environmental Protection Agency, How Mobile Source Pollution Affects Your Health, https://www.epa.gov/mobile-source-pollution/how-mobile-source-pollution-affects-your-health (last visited Dec. 10, 2020).

[22] Mohl, Citizen Activism, supra note 11 at 873.

[23] Christopher D. Ahlers, Race, Ethnicity, and Air Pollution: New Directions in Environmental Justice, 46 Envtl. L. 713, 720 (2016).

[24] 42 U.S.C.A. § 2000d (West).

[25] Id.

[26] Sánchez et al., Moving to Equity, supra, note 18.

[27] Id.

[28] 23 CFR Part 200, §200.9, Sánchez, Moving to Equity, supra, note 18.

[29] Sánchez et al., Moving to Equity, supra, note 18.

[30] Id.

[31] Id.

[32] Id.

[33] Exec. Order No. 12898, 59 Fed. Reg. 7629 (Feb. 11, 1994).

[34] Id.

[35] Id.

[36] US Environmental Protection Agency, Executive Order 12898 on Environmental Justice, available at https://www.epa.gov/fedfac/epa-insight-policy-paper-executive-order-12898-environmental-justice#factsheet (last visited Dec. 10, 2020)

[37] Amanda K. Franzen, The Time Is Now for Environmental Justice: Congress Must Take Action by Codifying Executive Order 12898, 17 PENN St. ENVTL. L. REV. 379, 388 (2009).

[38] 59 Fed. Reg. 7629.

[39] Franzen, supra, note 37.

[40] Id.

[41] Id.

[42] Id.

[43] Id.

[44] Brendel C. Kragt, et al. Environmental Justice: The New Normal for Transportation, Public Roads, Vol. 79, No. 5 (2016).

[45] US Department of Transportation, Environmental Justice Strategy (Nov. 15, 2016), available at https://www.transportation.gov/transportation-policy/environmental-justice/environmental-justice-strategy.

[46] Federal Highway Administration, Environmental Justice Reference Guide (Apr. 1, 2015), available at https://www.fhwa.dot.gov/environment/environmental_justice/publications/reference_guide_2015/fhwahep15035.pdf.

[47] Department of Transportation Updated Environmental Justice Order 5610.2(a), 77 FR 27534-02.

[48] Id.

[49] US DOT Environmental Justice Strategy, supra note 45.

[50] Id.

[51] Id.

[52] Kragt, supra, note 44.

[53] Id.

[54] FHWA Actions to Address Environmental Justice in Minority Populations and Low-Income Populations Order 6640.23A.

[55] Id.

[56] Id.

[57] Id.

[58] Alex Karner and Deb Niemeier, Civil Rights Guidance and Equity Analysis Methods for Regional Transportation Plans: A Critical Review of Literature and Practice, 33 Journal of Transport Geography, 126, 127 (2013).

[59] Sánchez et al., Moving to Equity, supra, note 18.

[60] Id.

[61] Strauss, supra note 7.

[62] Mohl, Citizen Activism, supra note 11 at 873.

[63] Id. at 874.

[64] Strauss, supra note 7.

[65] Mohl, Citizen Activism, supra note 11 at 874.

[66] Strauss, supra note 7.

[67] Mohl, Citizen Activism, supra note 11 at 875.

[68] Id.

[69] Id.

[70] Id.

[71] Id.

[72] Id. at 876.

[73] Id.

[74] Id.

[75] Id.

[76] Id.

[77] Strauss, supra note 7.

[78] Id.

[79] Strauss, supra note 7.

[80] Strauss, supra note 7.

[81] Id.

[82] Karas, supra note 16.

[83] Mohl, Citizen Activism, supra note 11 at 876.

[84] Id. at 877.

[85] Alex Karner, et al. From Transportation Equity to Transportation Justice: Within, Through, and Beyond the State, Journal of Planning Literature Vol. 35, No. 4 (2020) [hereinafter Transportation Equity].

[86] Mohl, Citizen Activism, supra note 11 at 882.

[87] Id.

[88] Id. at 883.

[89] Id. at 880.

[90] Id.

[91] Id. at 883.

[92] Id.

[93] Id. at 884.

[94] Id.

[95] Id.

[96] Id.

[97] Id.

[98] Id. at 886.

[99] Id.

[100] Id. at 887.

[101] Ryan Holifield et al., The Routledge Handbook of Environmental Justice, Alex Karner, et al., Transportation and Environmental Justice: History and Emerging Practice 32 (2020).

[102] Id.

[103] Id.

[104] Karner et. al, Transportation Equity, supra note 85.

[105] Id.

[106] Raymond A. Mohl, The Expressway Teardown Movement in American Cities: Rethinking Postwar Highway Policy in the Post-Interstate Era, Journal of Planning History 11(1), 90, 91 (2011).

[107] Blair Stenvick, Critics of I-5 Expansion Plan Call for More Extensive Environmental Study, Portland Mercury (Mar. 28, 2019 3:19PM), https://www.portlandmercury.com/blogtown/2019/03/28/26229966/critics-of-i-5-expansion-plan-call-for-more-extensive-environmental-study.

[108] Id.

[109] Jeff Mapes, Oregon Transportation Commission Says I-5 Expansion Doesn’t Need Full Environmental Review, OPB (Apr. 2, 2020 12:24PM), https://www.opb.org/news/article/oregon-transportation-commission-says-i-5-rose-quarter-project-doesnt-need-full-environmental-impact-statement/.

[110] Oregon Department of Transportation, Environmental Justice Technical Report (Jan. 8, 2019), available at https://www.i5rosequarter.org/wp-content/uploads/2019/02/I5RQ_Environmental-Justice-Technical-Report_010819.pdf.

[111] The Biden Plan to Secure Environmental Justice and Equitable Economic Opportunity (last visited Dec. 10, 2020), https://joebiden.com/environmental-justice-plan/#.

[112] Id.

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