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Environmental Justice Strategy

Memorandum of Understanding on Environmental Justice and Executive Order 12898

Department of Transportation Environmental Justice Strategy

I. Introduction

A. Overview

Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (February 11, 1994), (E.O. 12898 or E.O.) requires each Federal agency to “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 E.O. directs each Federal agency to develop an agency-wide environmental justice (EJ) strategy to implement its requirements. The U.S. Department of Transportation (DOT or the Department) issued its original EJ strategy in 1995.

On August 4, 2011, the Secretary of Transportation, along with heads of other Federal agencies, signed a Memorandum of Understanding on Environmental Justice and Executive Order 12898 (EJ MOU) confirming the continued importance of identifying and addressing EJ considerations in agency programs, policies and activities as required by E.O. 12898. As part of the EJ MOU, each Federal agency agreed to review and update their existing EJ strategy as appropriate, and to publicize the updated strategy. Accordingly, DOT has reviewed and updated its 1995 EJ strategy as appropriate. The updated EJ strategy continues to reflect DOT’s commitment to EJ principles and to integrating those principles into DOT programs, policies and activities. The updated strategy also continues to rely upon existing authorities for achieving EJ as described by the E.O., such as the National Environmental Policy Act of 1969 (NEPA), Title VI of the Civil Rights Act of 1964 (Title VI) and related statutes, and Section 6-601 of the EO on Internal Reviews as well as conforming to the commitments and focus areas set forth in the EJ MOU.

B. Relationship of EJ to Agency Mission and Agency Strategic Plan, Goals and Objectives

As a key component of DOT’s 1995 EJ strategy, the Department issued an internal DOT Order on EJ in 1997 (DOT Order 5610.2), setting forth the Department’s commitment to achieving EJ as part of its mission and providing that it is DOT policy to promote EJ principles through the incorporation of those principles in all DOT programs, policies, and activities. DOT’s commitment to EJ is consistent with DOT’s overall mission “to serve the United States by ensuring a fast, safe, efficient, accessible, and convenient transportation system that meets our vital national interests that enhances the quality of life of the American people, today and into the future.” By incorporating EJ and non-discrimination considerations into the transportation planning and decision making processes as well as project-specific environmental reviews, DOT strives to ensure that transportation decision making will enhance the quality of life for all people in America. EJ is also directly related to two key priorities of the Department, Livable Communities and Environmental Sustainability, both of which promote healthy neighborhoods with environmentally sustainable transportation options.

C. Guiding EJ Principles

The E.O. directs agencies to identify and address, as appropriate, disproportionately high and adverse human health or environmental effects of agency programs, policies, and activities on minority populations and low-income populations. EJ at DOT includes incorporating EJ and nondiscrimination principles into transportation planning and decision making processes as well as project specific environmental reviews.

The guiding EJ principles followed by DOT are briefly summarized as follows:

  • To avoid, minimize, or mitigate disproportionately high and adverse human health and environmental effects, including social and economic effects, on minority populations and low-income 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.

D. Previous EJ Strategy

E.O. 12898 requires each Federal agency to develop a specific agency-wide strategy for implementing the E.O. provisions. DOT’s original 1995 EJ strategy affirmed the Department’s commitment to the principles of EJ embodied in the Secretary’s 1995 Strategic Plan, and identified actions the Department intended to take to implement E.O. 12898. The 1995 strategy also set forth DOT’s approach to implementing E.O. 12898 in all relevant programs, policies, and activities sponsored, supported, and undertaken by the Department.

The key component of the 1995 EJ strategy was development of an internal DOT Order on EJ. In June 1995, DOT published a proposed Order for comment in the Federal Register, and issued its final Order on EJ in April 1997. DOT Order 5610.2 “Environmental Justice in Minority Populations and Low-Income Populations” provides guidance to DOT’s Operating Administrations (OAs) for integrating EJ principles into existing programs, policies, and activities. In the ensuing 16 years since issuance of its 1995 strategy, the Department has remained committed to these principles and has worked to avoid, minimize, or mitigate disproportionately high and adverse impacts of its programs, policies, and activities on minority and low-income populations.

II. 2011 EJ Strategy

The original DOT strategy was intended to have the flexibility to be adjusted periodically in light of changing social and technological conditions as well as new insights acquired through implementation.

Recent events have facilitated such adjustments. In 2010, the Obama Administration renewed the Federal government’s commitment to EJ, appointing a Senior Advisor on EJ at the Environmental Protection Agency (EPA) and reinvigorating the EJ Interagency Working Group (EJ IWG) established by E.O. 12898, with an increased focus on public engagement.

DOT was a participant in this new effort, with senior leadership participating in Cabinet-level meetings and speaking at a White House Forum on EJ. On August 4, 2011, the Secretary of Transportation joined heads of other Federal agencies in signing the EJ MOU, acknowledging the continued importance of EJ and pledging to review and update, as applicable, existing EJ strategies with a focus, as appropriate, on the following areas: implementation of NEPA; implementation of Title VI; impacts from climate change; and impacts from commercial transportation and supporting infrastructure. In response to the MOU, an internal DOT staff-level working group, with representatives from all relevant OAs, has worked to update the 1995 strategy.

A review of the strategy and the history of EJ implementation has elicited new recommendations that the Department believes will improve the strategy and ability of DOT to achieve EJ. The updated strategy reflects DOT’s continued commitment to embracing the objectives of EJ. DOT will do so through enforcement of all applicable planning and environmental regulations and legislation, and through promoting nondiscrimination in programs, policies, and activities that affect human health and the environment, consistent with E.O. 12898, NEPA, planning statutes in Title 23, U.S. Code and Title 49 U.S. Code., and Title VI of the Civil Rights Act of 1964 and related statutes. DOT also remains committed to bringing government decision making closer to communities and people affected by these decisions, and ensuring opportunities for greater public participation in providing input into these decisions relating to human health and the environment.

A. Department-Wide Efforts on EJ

1. DOT Order

Of central importance to the continued implementation of EJ principles within DOT is its 1997 internal EJ Order, which establishes procedures and guidance for the Department and its OAs to implement E.O. 12898. The DOT Order is intended to ensure a consistent approach toward achieving EJ within the Department and to guarantee that all DOT components fully consider and incorporate, as appropriate, EJ principles in existing programs, policies, and activities. The Order also reaffirms DOT’s commitment to ensuring that nondiscrimination is an integral part of its programs, policies, and activities.

Executive Order 12898 and the accompanying Presidential Memorandum underscore the importance of utilizing existing laws to ensure that all persons live in a safe and healthy environment, and that the DOT Order is closely aligned with the requirements of NEPA and Title VI. Specifically, Title VI prohibits discrimination on the basis of race, color, or national origin in programs or activities receiving Federal financial assistance. Consistent with Title VI and the E.O., the DOT Order emphasizes the importance of ensuring that programs or activities funded by DOT which affect human health or the environment do not discriminate on the basis of race, color, or national origin. The DOT Order also emphasizes that requirements, such as NEPA, be administered so as to identify the risk of discrimination early in the development of the program or activity so that positive corrective action can be taken.

The DOT Order sets forth three core objectives which will continue to be upheld. First, it directs the Office of the Secretary of Transportation (OST) and Departmental OAs to determine the most effective and efficient way of integrating the processes and objective of the Order with existing regulations and guidance.

Second, the DOT Order sets forth guidance for determining whether a DOT or a DOT-funded program, policy, project, or activity (DOT action) is likely to have disproportionately high and adverse human health or environmental effects on low-income or minority populations. As part of this process, DOT, it’s OAs, and recipients of Federal financial assistance will provide appropriate and meaningful opportunities for comment by representatives of potentially affected communities. The DOT Order directs the Department to consider EJ objectives when administering the requirements of NEPA; Title VI and related statutes; the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended (URA); Congressional authorized planning requirements; other laws, regulations, and executive orders, that address or affect infrastructure planning and decision making; social, economic or environmental matters; public health; and public involvement.

Third, the DOT Order provides guidance on actions to be taken to address disproportionately high and adverse effects, including mitigation measures and consideration of alternatives that would avoid or reduce the disproportionately high and adverse effect. These measures include pollution prevention, and health and safety measures; measures to maintain community cohesion and economic vitality; and mitigation and compensatory measures. This process includes procedures to provide meaningful opportunities for public involvement by low-income and minority populations, including community input in identifying potential mitigation measures for DOT actions.

The DOT Order also provides for data collection and research, as needed, to provide information to comply with Executive Order 12898.

2. Guidance for OAs

Each OA of the Department whose programs, policies, and activities may result in disproportionately high and adverse human health or environmental effects on minority populations and low-income populations will develop OA tools or documents on EJ, consistent with DOT Order 5610.2. Guidance across agencies will be streamlined to an appropriate degree through the DOT Working Group, the Office of the Assistant Secretary for Transportation Policy, and the Departmental Office of Civil Rights. This includes determining the most effective and efficient way of integrating the processes and objectives of the strategy and the DOT Order with existing regulations and guidance. Each appropriate OA will participate in the Department’s EJ working group and will continue to cooperate in these matters with the Departmental Office of Civil Rights and the Assistant Secretary for Transportation Policy.

DOT and its operating administrations will review research programs and activities to determine whether and how minority and low-income populations may be more appropriately included in the scope of particular research projects.

3. Public Outreach on Implementation of the EJ Strategy

Public engagement and participation in decision making is a fundamental principle of EJ, and is critical to achieving outcomes that reflect the needs of all affected stakeholders to the greatest extent possible. Low-income and minority communities have historically borne disproportionately high or adverse human health or environmental effects of infrastructure projects. Active participation of all affected communities will help ensure that transportation plans and projects avoid, minimize, or mitigate these impacts on low-income and minority populations. For this reason, DOT is committed to developing and using public engagement to encourage EJ populations to participate during the planning and implementation of DOT programs, policies, and activities.

DOT is committed to engaging low-income and minority populations in the transportation decision making across all OAs, from the earliest stages of planning through project implementation. As DOT implements an outreach strategy, the Department is committed to building relationships with stakeholders, including state and local partners who help fund our transportation systems and those who serve underrepresented populations, recognizing that community leaders are ideally positioned to champion the public engagement process and disseminate information to their constituents.

DOT is exploring traditional and nontraditional strategies for engaging low-income and minority populations, including regional workshops for State and local officials, online announcements , as well as a web-based portal to organize DOT documents relevant to EJ in an easily searchable location. On this portal, DOT will be able to create a site to facilitate informal dialogue and feedback from EJ stakeholders and representatives as needed. DOT will also ensure that communities with Limited English Proficiency (LEP) populations have access to information to the fullest extent feasible and that their participation in providing input into decision making is encouraged. The Department has developed a public engagement team to develop and refine the Department’s outreach strategy as needed.

4. DOT Guidance and Training on EJ

In order to ensure that DOT managers are fully aware of their responsibilities under E.O. 12898 and preexisting statutory mandates, DOT will continue to make information seminars on EJ available for program managers throughout the Department. Representatives of the EJ community have been consulted in the planning of these seminars in the past, and should continue to be consulted as this training is updated.

In addition, in keeping with the Department’s philosophy of integrating EJ considerations into all appropriate Departmental programs, policies, and activities, DOT OAs will review and modify existing training courses to ensure adequate coverage of EJ principles and to use training examples that include EJ aspects. These courses include such subjects as compliance with environmental mandates, infrastructure planning and development, implementation of civil rights programs by recipients and subrecipients of grants, public involvement, and management of Departmental facilities and resources. The audience for these training courses includes DOT employees and recipients of DOT funding. Formal training on the application of EJ is provided through the National Highway Institute and the National Transit Institute to help Federal employees and grantees understand processes and tools to ensure compliance with EJ policies. DOT also provides technical assistance to transportation agencies to ensure low-income and minority communities are provided a convenient opportunity for meaningful input into transportation decisions that affect their community.

These training opportunities and technical assistance improve DOT’s ability to achieve EJ within the Department as well as in DOT projects that receive Federal funds. DOT will continue to ensure that EJ training remains available and includes essential information on meaningful public engagement in transportation decision making. DOT will utilize existing technology to make these training courses as widely available, as possible.

B. Role of Key DOT Elements in Complying With Executive Order 12898 and the EJ MOU

The following organizations will have key roles to play in coordinating the implementation process.

1. DOT EJ Working Group

The Secretary will formally establish the internal DOT EJ Working Group, which has been meeting informally for the purposes of discussing various EJ matters. The EJ working group will comprise attorneys, civil rights staff, and environmental program staff from appropriate OAs and OST, to be coordinated and led by the Office of the Assistant Secretary for Transportation Policy (OST-Policy).

In the course of regularly held meetings, this working group will discuss EJ issues, including those that arise in individual or multiple OAs and in Department-wide initiatives, to ensure consistency in policy objectives, share expertise, facilitate efficient use of resources, and to encourage consultation and coordination among employees in civil rights offices, environmental program offices, and legal offices. The working group will also review guidance developed by the OAs to ensure consistency within the Department.

2. Office of the Assistant Secretary for Transportation Policy

OST-Policy will maintain contact with various elements of the Department to ensure that each OA examines its programs, policies, and activities and takes appropriate actions to comply with E.O. 12898, the EJ MOU, and the DOT EJ Order. This office is also responsible for monitoring implementation of the DOT EJ strategy to help keep the strategy relevant and foster consistency and comprehensiveness in complying with the principles embodied in the Executive Order and the commitments agreed to in the EJ MOU. In addition, the office will work to keep senior Departmental officials properly involved in achieving the strategy’s objectives and in maintaining liaison with EJ IWG, other departments, and agencies as well as the EJ community.

3. Departmental Office of Civil Rights

The Departmental Office of Civil Rights will provide leadership and technical assistance to the OAs and to recipients of DOT funds, as needed, in the administration of their Title VI responsibilities which relate to EJ, including the investigation of Title VI complaints and/or Alternative Dispute Resolution regarding EJ issues. This may take the form of guidelines, memoranda of general applicability, and training designed to achieve EJ for members of minority populations. The Departmental Office of Civil Rights will confer with the OA civil rights offices about EJ matters, particularly prior to issuance of guidelines, memoranda, etc., to ensure departmentally consistent messages.

C. Program Efforts that Advance EJ

Those OAs whose programs, policies, or activities may have disproportionately high human health or environmental effects on minority populations and low-income population shave or will develop tools and documents, that may include guidance, best practices, handbooks, administrative statements, circulars, or other products, as appropriate, for achieving EJ in their programs, consistent with DOT’s EJ Order. These OAs include but not limited to the Federal Highway Administration (FHWA), Federal Transit Agency (FTA), Federal Aviation Administration (FAA), Maritime Administration (MARAD), Pipelines and Hazardous Materials Safety Administration (PHMSA), and the Federal Railroad Administration (FRA).

In addition, each OA shall focus as appropriate for its missions on the following areas: transportation access to jobs, particularly for non-driving segments of the population; quality of transportation systems near minority and low-income communities; implementation of NEPA; implementation of Title VI; impacts and benefits from commercial transportation and supporting infrastructure (goods movement); and impacts from climate change.

DOT will place special emphasis on establishing streamlined and consistent EJ guidance across all OAs. Actions undertaken will be developed and refined as the Department’s strategy evolves. The guidance developed by OAs will be reviewed by the DOT EJ Working Group to ensure that the guidance does not establish significantly different requirements or processes across the OAs.

D. Reporting and Accountability

To encourage accountability in coordination and reporting, all OAs will report back to OST-Policy within 6 months of the date on which this strategy is finalized, on progress in developing guidance, integration of EJ principles into existing operations, and other items set forth in the EJ MOU.

Additionally, relevant OAs, including those listed above, will submit an annual progress report by December 11th of each year to the DOT Interagency Working Group, beginning December 11, 2011, containing a concise report on progress during the previous fiscal year in carrying out DOT’s EJ strategy and E.O. 12898. As required by the EJ MOU, the DOT Working Group will then prepare an annual implementation progress report by February of each year, beginning in 2012, and will post the annual report on DOT’s public webpage and provide a link to the EJ IWG.

To ensure that the strategy remains a living document, DOT is considering plans to review and revise, where applicable, its EJ strategy every 3 years.

E. Interagency and Intergovernmental Collaboration

DOT will coordinate procedures and work to remove procedural or regulatory barriers to achieving EJ. This includes programs and collaborations across the DOT OAs, and with other Federal agencies, States, local and tribal governments.

Through senior and staff participation in the EJ IWG and committees, and through adherence to the EJ MOU, DOT will coordinate its EJ efforts with other Federal agencies wherever practical and advisable. The continued development of DOT’s EJ strategy will be informed by EJ principles and strategies shared across multiple agencies as well as public input, thus adhering to E.O. 12898 while encouraging a streamlined set of principles that work to minimize divergent expectations from various stakeholders.

In addition to policy and strategies, DOT will work with various stakeholders to develop EJ guidance as needed for DOT funded interagency programs or activities. EJ guidance for such activities will adhere to the principles outlined in the DOT EJ Order and this strategy. DOT has experience with implementing EJ principles within interagency initiatives, as exemplified by the EJ working group within the Partnership for Sustainable Communities, an interagency grant program consisting of DOT, Environmental Protection Agency, and Department of Housing and Urban Development.