Environmental Justice, Title VI, Non-Discrimination, and Equity

Although Environmental Justice (EJ), Title VI, Non-Discrimination, and Equity are distinct elements, collectively they can contribute to the development of an equitable transportation system. These elements are regularly mistaken and used interchangeably, thus, making it essential to understand their differences.

EJ at FHWA focuses on identifying and addressing disproportionately high and adverse human health or environmental effects of the agency's programs, policies, and activities on minority populations and low-income populations to achieve an equitable distribution of benefits and burdens. This objective is to be achieved, in part, by actively adhering to the principles and practices of both Title VI and the National Environmental Policy Act (NEPA) during the development and implementation of transportation activities. The classes covered by EJ vary slightly from those covered by Title VI and other nondiscrimination statutes, as depicted in Table 1.

Table 1. A comparison of EJ, the Title VI statute, and the FHWA Title VI Program
Area of Comparison	EJ	Title VI Statute	FHWA Title VI Program
Authorizing source	Executive Order 12898	Civil Rights Act of 1964	Title VI Program and Related Authorities: 23 CFR 200
Goal	Identify and address disproportionately high and adverse human health or environmental effects on minority and low-income populations	Prohibit discrimination on the basis of race, color, or national origin in programs receiving Federal assistance	Ensure that funding recipients comply with Title VI and related civil rights authorities
Protected classes	Minority and low-income populations	Race, color, and national origin	Race, color, national origin, sex, age, disability, low-income, and limited English proficiency
Covered actions	Federal programs, policies, and activities	All activities of recipients of Federal assistance	All activities of recipients of FHWA assistance
FHWA Lead Office	Office of Civil Rights and Office of Planning, Environment, and Realty	Office of Civil Rights	Office of Civil Rights
Entities responsible for implementation	FHWA offices and recipients of Federal assistance	FHWA offices and recipients of Federal assistance	FHWA offices and recipients of FHWA assistance
Provides authority for private parties to initiate a lawsuit	No. However, where an agency opts to examine EJ as part of its NEPA analysis, courts may review the EJ analysis under the Administrative Procedure Act.	Yes. However, there is only a private right of action in a lawsuit for claims of intentional discrimination and not disparate impact discrimination. Only the funding agency issuing the disparate impact regulation has the authority to challenge a recipient's actions under a disparate impact claim.	No

Title VI of the Civil Rights Act of 1964 prohibits discrimination based on race, color, and national origin in programs and activities receiving Federal financial assistance. More 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." The use of the word "person" is important as the protections afforded under Title VI are not limited to citizens of the United States; the U.S. Supreme Court has held that undocumented immigrants are considered "persons" under the equal protection clause of the Fifth and Fourteenth Amendments.

"Nondiscrimination" is more inclusive than the Title VI statute as it covers additional classes of individuals, and, pertains to other civil rights authorities with which funding recipients must comply. Under the Title VI statute, protected classes include race, color, and national origin; limited English proficiency is included within the class of national origin. FHWA's Title VI program (in contrast to the Title VI statute) expands the covered classes to include sex, age, disability and low-income.

Together, Title VI, EJ, and other nondiscrimination authorities protect diverse segments of the population which may be at risk of being unduely impacted by, or which have been historically underrepresented, within the transportation decision-making process. Considering the needs of and potential impacts of projects on these populations may result in greater transportation equity as benefits are likely to be more equitably distributed amongst the affected communities.

Equity in transportation seeks fairness in mobility and accessibility to meet the needs of all community members. A central goal of transportation equity is to facilitate social and economic opportunities by providing equitable levels of access to affordable and reliable transportation options based on the needs of the populations being served, particularly populations that are traditionally underserved. This population group includes individuals in at least one of the following categories: Low Income, Minority, Elderly, Children, Limited English Proficiency, or Persons with Disabilities. It is important to note that transportation equity does not mean equal. An equitable transportation plan considers the circumstances impacting a community's mobility and connectivity needs and this information is used to determine the measures needed to develop an equitable transportation network. The graphic in Figure 1 illustrates the differences between equality and equity. To attain an equitable transportation network, all components of Title VI, EJ, and Nondiscrimination must be considered.

Two images of an adult and 2 childtren standing at a fence watching a baseball game. In the first picture, captioned Equality, all three are standing on a box. In the second, captioned Equity, the adult has given his box to the shorter child now standing on two boxes.

Source: Interaction Institute for Social Change