Chapter 1

"...And Justice For All" DVRPC'S Strategy for Fair Treatment and Meaningful Involvement of all People"

Section I: Introduction and Background

What is Environmental Justice?

An assessment of environmental justice (EJ) impacts applies to agencies receiving federal funds, and describes a combination of individual and agency attitudes, sensitivities and responsibilities to ensure that policies, programs, funds and actions do not result in direct or disparate negative impacts on any racial, ethnic or socio-economic group. The US Environmental Protection Agency defines EJ as:

"...the fair treatment and meaningful involvement of all people, regardless of race, color, national origin or income with respect to the development, implementation, and enforcement of environmental laws, regulations and policies. Fair treatment means that no group of people, including racial, ethnic, or socio-economic groups should bear a disproportionate share of the negative environmental consequences resulting from industrial, municipal, and commercial operations or the execution of federal, state, local, and tribal programs and policies." ¹

At its most basic level, the concept and intent of EJ seems quite simple: federal funds should not be used to support intentional and willfully discriminatory practices or effects on low income and minority persons. In reality, the circumstances of policy and project implementation, and the degree of negative impacts that form the basis for EJ challenges can be quite subtle. A more complete understanding requires the investigation and evaluation of "disparate impact" circumstances: "To prevent the denial of, reduction in, or significant delay in the receipt of benefits by minority and low-income populations."² This kind of impact can include failure to take action, as well as the relative degree or effects of a neutral action, regardless of the initial intentions or motivations.

To implement EJ concerns, agencies must enhance their public involvement programs to "ensure the full and fair participation by all potentially affected communities in the transportation decision-making process."³ Specifically, agencies need to address the identified groups, and evaluate the extent to which their current programs or activities may cause direct or disparate impacts. Gaps, unmet needs or inconsistent policies can then be modified in response to the outcome of the evaluation.

Environmental justice also applies at the project level (such as the construction of an interchange, for example) and has been institutionalized as part of the environmental assessment and impact statement process governed by the National Environmental Policy Act (NEPA) of 1969. Demographic analysis of the geographic area affected by a proposed project needs to be undertaken to determine the socioeconomic and racial composition of the neighborhood or area, and whether there will be direct or disparate impacts on the defined groups. Mitigation or avoidance actions can then be proposed to ameliorate any potential negative impacts. However, this project-level analysis is not the subject of this report. Instead, this report focuses on the regional scale and assessments of regionwide documents (i.e., DVRPC's long-range plan and the Transportation Improvement Program).

Purpose of This Report

The Delaware Valley Regional Planning Commission (DVRPC) has prepared this report to: (1) provide background information about environmental justice issues; (2) explain DVRPC's mission and roles; (3) summarize pertinent agency plans, programs and projects; (4) introduce DVRPC's EJ assessment methodology and the outcome of its application to the long-range plan and Transportation Improvement Program (TIP); (5) explain current agency public involvement activities; and (6) define recommended policies and action strategies to achieve EJ compliance. This report represents DVRPC's initial response to EJ concerns; the report will be updated and refined over time to incorporate new information (such as additional results from the Year 2000 Census), public comments and changing policy or strategy approaches.

The Evolving Legal Context for Environmental Justice

The legal basis for EJ is not new, since it is derived from Title VI of the Civil Rights Act of 1964. Title VI states that: "No person in the United States shall, on the grounds 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 assistance."

Title VI was amplified by President Clinton's February 11, 1994, Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations. The Executive Order states that "each Federal agency shall 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 and low-income populations." Subsequent federal guidance documents from the US Department of Transportation (a Memorandum to field offices on October 7,1999 and a Notice of Proposed Rule making for the Metropolitan and Statewide Planning Regulations on May 25/26, 2000), make it clear that EJ applies not only to implementing specific projects (to be addressed during project development), but equally to the processes and products of planning and environmental analysis. In this regard, the Federal Highway Administration and the Federal Transit Administration are charged with ensuring that Metropolitan Planning Organizations, like DVRPC, comply with Title VI as part of their annual certification review process, and in reviewing the State Transportation Improvement Program. This emphasis on EJ implementation through the MPO certification process and the statewide TIP is new and reflects the importance of EJ compliance from a federal perspective.

The focus of Title VI (through Section 601 and 602, respectively) is on both intentional discrimination and disparate impact discrimination (defined as a neutral policy or practice that has a disparate impact on low income and minority groups). The former issue (direct discrimination) has been clearly framed by legal precedent and is more easily understood by the public. The latter issue (disparate impacts) has also developed a body of case law through both governmental and private lawsuits. As the result of recent (2001) litigation and judicial intervention, however, the concept of disparate impact suits by private parties to correct alleged environmental justice concerns is subject to further clarification by the federal courts. The focus of the debate involves two court cases, one of which is in the Delaware Valley.

On April 24, 2001, the US Supreme Court, in a 5 to 4 vote, decided that environmental justice related disparate impact lawsuits could not be brought by private parties under Title VI ⁴. While affirming the use of Title VI for intentional discrimination lawsuits (brought either by the federal government or by private parties), the Court's majority determined that only the federal government could bring disparate impact suits. Many commentators viewed this outcome as severely weakening the environmental justice movement.

However, on May 13, as a result of on-going litigation in Camden City between a predominantly African-American and Latino neighborhood group and the New Jersey Department of Environmental Protection over the negative health impacts of a recently completed $50 million cement plant, a federal judge determined that an alternative avenue for private disparate impact lawsuits is available. In his Supplemental Opinion following the US Supreme Court opinion in Sandoval, he cited Section 1983 of the Civil Rights Act, which has been in existence since 1871. This section states:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

The judge used this section to craft a rationale to support his earlier order to place an injunction on operation of the plant. ⁵ However, on June 16, a federal appeals court overturned the injunction, allowing the plant to begin operation while the court reviews the case, citing the economic impact on the plant owner and on local residents. This issue may be furthered clarified later this year, when the Appeals Court renders its opinion, or through subsequent litigation or appeals to the US Supreme Court. The unsettled legal situation does not, however, relieve DVRPC from its responsibilities to implement a sound program to deal with the overall EJ issue.

DVRPC's Mission, Governance and Responsibilities

The Delaware Valley Regional Planning Commission (DVRPC) is the federally designated Metropolitan Planning Organization (MPO) for the nine-county, bi-state, Philadelphia-Camden-Trenton region. The sixth largest metropolitan area in the United States, the DVRPC region had more than 5.4 million people and 2.7 million jobs as of the year 2000. The DVRPC region is 3,833 square miles in area and includes 353 townships, boroughs and cities within its nine counties.

Mission: DVRPC's mission is to provide continuous, coordinated and comprehensive planning to guide the future growth and development of the Delaware Valley Region. In fulfilling its responsibilities as the region's MPO, DVRPC's 105-person staff prepares and maintains an adopted, long-range Land Use and Transportation Plan (currently the Horizons Year 2025 Plan) and an adopted Transportation Improvement Program (TIP) that includes Pennsylvania and New Jersey components. In addition, DVRPC prepares an annual Planning Work Program that details all of the projects and studies that will be undertaken by DVRPC staff, member governments and operating agencies during the fiscal year (July 1 to June 30). These primary DVRPC products are discussed in more detail in Section II.

Governance: Created in 1965 by interstate compact, DVRPC is governed by an 18 member Board which establishes and adopts regional plans, programs and policies and a 10 member Executive Committee which deals with general operations and financial matters. The Board's 18 voting members are: three state representatives from each state (a Governor's representative; the Pennsylvania and New Jersey Departments of Transportation; the Pennsylvania Governor's Policy Office; and the New Jersey Department of Community Affairs); one each from the counties of Bucks, Chester, Delaware and Montgomery, as well as the cities of Philadelphia and Chester, in Pennsylvania; and one each from the counties of Burlington, Camden, Gloucester and Mercer, as well as the cities of Camden and Trenton, in New Jersey.

Participating Non-Voting members include the Chair of the Regional Citizens Committee; the region's three public transit agencies (Southeastern Pennsylvania Transportation Authority, New Jersey TRANSIT and the Port Authority Transit Corporation); the Delaware River Port Authority; the New Jersey Office of State Planning; the Pennsylvania and New Jersey Departments of Environmental Protection and the Pennsylvania Department of Community and Economic Development. Federal agency representatives include the Federal Highway Administration, Federal Transit Administration, the Environmental Protection Agency and the Department of Housing and Urban Development.

Board decision-making at DVRPC is generally by consensus with opportunities for staff-level technical and citizen reviews and revisions to proposed action items through the committee process, during the month preceding the Board meeting. The DVRPC Compact includes state veto provisions, which are rarely exercised. In those instances where there have been differences over a particular issue or project, action is usually delayed to allow more time for resolution.

Responsibilities: The DVRPC Board meets 10 times a year. All meetings are open to the public and anyone can be added to the Commission's mailing list by request. The meeting agendas usually include amendments to the Transportation Improvement Program, review, discussion and action on related highway, transit and land use planning issues and consideration of amendments to the Tri-County Water Quality Management Plan in New Jersey and, for example, applications for PennVest sewer and water loans in Pennsylvania. The Planning Work Program is adopted by the Board annually, the Plan must be updated every three years and a revised TIP is prepared every two years for New Jersey and annually for Pennsylvania. Staff presentations on current studies of interest are usually a part of each agenda. Guest speakers from transportation, planning and governmental fields are invited to present topics of interest, particularly at the Annual Board Retreat in December.

Opportunities for public comments and questions are provided at the beginning of each meeting, and during the discussion of particular action or information items. The DVRPC Regional Citizens Committee, discussed in more detail in Section IV, also meets at least 10 times a year (with separate subcommittee meetings on special topics), and reviews those action and information items that appear on the Board meeting agenda. Special committees on such diverse topics as Ozone Action, Goods Movement, Airports, Land Use and Development, Housing, Environmental Justice and Information and Technology applications provide additional opportunities for citizen participation in the development of regional policies, programs and implementation strategies.

During the preparation of studies and projects, particularly those involving specific geographic areas or corridors in the nine-county region, DVRPC staff coordinates with county and local municipal officials and the public. Study advisory committees are the usual venue for this level of involvement. Sometimes, as with the Schuylkill Valley Metro Corridor Station Area Planning and Implementation project, the creation of a citizen-based task force and the goal of achieving direct public involvement is the primary study purpose, resulting in more local consideration of recommendations for land use change around the selected station sites.

DVRPC's Perspective on Environmental Justice

As a condition of the receipt of federal funding, DVRPC is subject to and responsible for enforcing pertinent EJ policies and regulations. EJ evaluations are often initiated in response to complaints or lawsuits alleging that a given action violates EJ concerns.

• DVRPC believes that an effective EJ policy and implementation strategy should not be based solely on a defensive, anti-litigation approach. Although the legal context for EJ must not be overlooked, DVRPC believes it should not be allowed to dominate the discussion of EJ issues.
• Instead, DVRPC believes it is more positive and effective to develop an affirmative and proactive EJ policy and accompanying implementation strategies with the overall goal of involving more people in the regional planning process. The policies and strategies should strive to achieve greater public understanding and participation, while simultaneously yielding a sound legal foundation should a potential EJ challenge be raised.

Guiding Principles

DVRPC has derived the following principles to guide development of the EJ policy statement, implementation strategies and monitoring process:

• A methodology to accomplish an MPO's EJ evaluation cannot rely solely on quantitative, technical factors.
• It is also essential to address qualitative issues, developed through the regional planning process, especially in relation to the policies and goals in the long-range plan and the recommendations included in various policy reports and technical studies.
• In addition, DVRPC believes a more proactive (rather than reactive) EJ implementation posture can be achieved through an agency-wide commitment to action, including a comprehensive perspective on EJ issues and public involvement opportunities.
• Rather than "reinventing the wheel" or creating a separate EJ approach, the focus of EJ implementation efforts should be through on-going enhancement of DVRPC's existing public information and involvement programs.
• DVRPC stands ready to assist our project implementation partners (the state departments of transportation (DOT's) and the operating agencies) to accomplish project-level environmental justice analyses, either through or outside of the NEPA process. This task can be accomplished through the provision of data, maps and related information. DVRPC can also assist the respective state DOT's to fulfill their required assessment of their respective Statewide Transportation Improvement Program (STIP).
• DVRPC's intentions in initiating the EJ assessment and public involvement enhancement processes are not predicated on merely fulfilling another MPO federal certification requirement. Instead, it is the firm commitment of DVRPC's Board and staff that an expanded EJ implementation program is needed because it is the right thing to do.

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