Public Advocates to FTA, February 9, 2010

Public Advocates
131 Steuart Street
Suite 300
San Francisco CA 94105

February 9, 2010
VIA ELECTRONIC MAIL
Peter Rogoff, Administrator
Federal Transit Administration
1200 New Jersey Ave., S.E.
Washington, DC 20590

Re: BART Draft Corrective Action Plan (FTA Office of Civil Rights Complaint No. 2009-0382)

Dear Administrator Rogoff:

We write on behalf of Urban Habitat, TransForm and Genesis, the complainants in FTA Complaint No. 2009-0382, to offer our comments on the draft “corrective action plan” that BART evidently submitted to FTA’s Office of Civil Rights on January 28.

We received this document (attached) for the first time on February 4 – significantly, not from BART (despite a request under the Public Records Act emailed to BART General Manager Dorothy Dugger on February 2, see attached), but through your agency’s FOIA officer. We request that you continue to provide us, under FOIA, with any additional documents that reflect BART’s proposed corrective action plan or FTA’s response.

BART’s secrecy in the preparation of this plan bodes ill both for its adequacy as a plan and for its chances of success in the implementation. We reiterate the view we have previously expressed that the relevant legal principles under Title VI and Executive Order 12898 bar FTA’s approval of any BART plan of corrective action that, like this one, was not prepared with the meaningful participation of the affected minority and low-income communities and populations, the violation of whose rights BART is now called upon to remedy.

We write today to respond to the substance of BART’s January 28 draft plan, which is deeply flawed at multiple levels. As we describe in more detail below:

•   The draft plan presupposes that BART will proceed with the current OAC project (by which we mean the project that will charge a $6 fare and provide no intermediate stops). BART deprived Environmental Justice (“EJ”) populations of their right to participate in the planning of that project and to shape it to meet their needs. Any meaningful plan of corrective action must assure that those same populations now receive an opportunity to participate while there is still a chance for that participation to make a difference in the ultimate outcome. BART’s draft plan, however, explicitly indicates its intent to “demonstrate” that the current OAC project is the only project alternative available to meet the needs of EJ populations. By assuming a foregone conclusion, BART has undermined the possibility of meaningful participation by affected minority and low-income populations from the start. (See Part A, below.)

•   The draft plan narrowly focuses the service and fare equity analysis on the impacts of discontinuing the existing “AirBART” bus service. Title VI and Executive Order 12898, however, require evaluation of a far broader question: whether the proposed new service and fare will deliver a fair share of benefits to affected EJ populations while not exposing them to an unfair share of its burdens. BART’s plan does not evaluate this broader question at all, and fails to set out the basic steps necessary to conduct it. (See Part B, below.)

•   The draft plan fails to include adequate steps to analyze specific mitigation measures and other project alternatives. Indeed, it displays a faulty understanding of the very purpose of such an analysis. (See Part C, below.)

•   The draft plan continues to fail to meet public participation requirements. Incredibly, the plan includes no public participation in the development of the OAC equity analysis, and no public participation in the development of the public participation guidelines. Far from demonstrating BART’s plan to remediate its past failures, the draft carries those very failures forward. (See Part D, below.)

•   The draft plan lacks firm completion dates for many of its actions, and thus provides no assurance that BART will complete its corrective actions within the legal timeframe for the obligation and expenditure of ARRA funds. Nor can BART certify its capacity to overcome engrained and systemic institutional non-compliance within the timeframes it does provide.   (See Part E, below.)

For each of these independent reasons, even if FTA is inclined to review a document that was prepared with no public involvement, it must reject BART’s plan, lest it become an unwitting party to BART’s violation of the law.

LEGAL BACKGROUND

Title VI of the Civil Rights Act of 1964 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.” (42 U.S.C. § 2000d, emphasis added.)

President Clinton’s 1994 Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,” requires that:

“To the greatest extent practicable and permitted by law, and consistent with the principles set forth in the report on the National Performance Review, 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 populations and low-income populations.” (59 Fed. Reg. 7626, § 1-101.)

The Executive Order is implemented by orders of the U.S. Department of Transportation (DOT Order 5610.2, 62 Fed. Reg. 18,377 [1997]) and the Federal Highway Administration (FHWA Order 6640.23 [1998]). Like Title VI, DOT’s Order implementing the Environmental Justice Executive Order prohibits actions that cause “disproportionately high and adverse effect on minority and low-income populations,” defining “adverse effects” to include “the denial of, reduction in, or significant delay in the receipt of, benefits of DOT programs, policies, or activities.” (DOT Order, 62 Fed. Reg. at 18381, emphasis added.)

A central goal of Title VI is to “[p]romote the full and fair participation of all affected populations in transportation decision making.” (Circular 4702.1A, ch. II, § 1(c).) Doing so requires recipients to “offer early and continuous opportunities for the public to be involved in the identification of social, economic, and environmental impacts of proposed transportation decisions.” (Circular 4702.1A, ch. IV, § 9.) In particular, recipients must

“provide meaningful opportunities for public involvement by members of minority populations and low-income populations during the planning and development of programs, policies, and activities (including the identification of potential effects, alternatives, and mitigation measures).” (DOT Order, 62 Fed. Reg. at 18380; see FHWA Order ¶5(c) (1) – (4).)

See also FHWA and FTA, PUBLIC INVOLVEMENT TECHNIQUES FOR TRANSPORTATION DECISION- MAKING (1996) (“[o]utreach to traditionally-underserved groups helps assure that all constituents have opportunities to affect the decision-making process. . . .”; “increas[ing] participation by underrepresented groups so they have an impact on decisions.”)

Title VI specifically provides Federal agencies with broad power to effectuate compliance, not only through the power of the purse but “by any other means authorized by law.” (42 U.S.C. § 2000d-1.) The Department of Transportation’s Title VI regulations provide that:

“Where prior discriminatory practice or usage tends, on the grounds of race, color, or national origin to exclude individuals from participation in, to deny them the benefits of, or to subject them to discrimination under any program or activity to which this part applies, the applicant or recipient must take affirmative action to remove or overcome the effects of the prior discriminatory practice or usage.” (49 C.F.R. § 21.5 (b) (7), emphasis added.)

And the DOT Environmental Justice Order requires that the Executive Order provisions
“will be administered to identify the risk of discrimination, early in the development of the program, policy or activity so that positive corrective action can be taken.” (DOT Order, 62 Fed. Reg. at 18380; see FHWA Order ¶5(b), emphasis added.)

FTA’s Title VI Circular requires a recipient’s proposed corrective action plan to “[d]escribe how the corrective actions will be implemented [and include] a timeline for achieving compliance,” and also requires the plan to “[i]nclude a written assurance that the recipient or subrecipient will implement the accepted corrective action(s) and has the capability to implement the accepted corrective action(s) in the manner discussed in the plan.” (Circular 4702.1A, ch. X, §§ 1(c)(2) – (3).)

The Title VI Circular goes on to provide for FTA’s review of the grantee response as follows:

“Within 30 days after receiving the recipient’s or subrecipient’s response, FTA will review the submitted remedial action plan and . . . decide what remedial action(s) are necessary and appropriate to bring the grantee into compliance. If necessary, before making a decision, FTA may conduct a site visit to substantiate information or statements contained in the recipient’s or subrecipient’s response. FTA will issue a decision, including its findings and recommendations, as part of a final remedial action plan. The final remedial action plan will be sent to the recipient or subrecipient for review and consent. Consent means that the grantee agrees to initiate action(s) specified in the plan.” (Circular 4702.1A, ch. X, § 1(e).)

In short, the central inquiry under both Title VI and the Executive Order is whether minority and low-income populations will receive a fair share of the benefits (and burdens) flowing from the investment and use of federal funds. Fair participation in the benefits entails an “early” and “meaningful” opportunity to participate in the planning of the decision. And where past non- compliance requires remedial action, FTA must use all authorized means to ensure that remedy is one which will not only ensure future fairness, but also affirmatively “overcome the effects of the prior” non-compliance.

SUMMARY OF MAJOR DEFICIENCIES

Measured against these standards, BART’s draft corrective action plan is thoroughly inadequate. Among its main deficiencies are the following:

•   BART developed the corrective action plan in secrecy, with no public participation whatsoever.

•   BART’s planned equity analysis of the OAC project is deficient in numerous major respects, among them:

o BART plans to prepare that equity analysis with no EJ participation, just as it prepared its January 14 submission to FTA.

o The corrective action plan is silent on how it will remedy BART’s prior non- compliance in developing the OAC project in its current form – a $6 fare and no intermediate stops – with no EJ participation. In fact, the plan makes it clear that BART already knows the conclusion that its equity analysis will reach: it will “demonstrate” that the exact same form of the project that BART previously adopted without EJ participation is appropriate. Put differently, the plan includes no strategy for “reaching out [to] and including [EJ populations] in the decision- making process” or “increas[ing] participation by underrepresented groups so they have an impact on decisions.”1

o The planned equity analysis will neither ask nor answer the relevant question under Title VI and the Executive Order, namely, whether the EJ populations that stand to benefit by a service improvement on the Hegenberger corridor will derive a fair share of the benefits of the project.

o BART does not plan to carry out the basic steps of a disparate impact analysis, including the identification of affected EJ populations and the determination of how the OAC project would meet its transportation needs on the Hegenberger corridor.

o The plan fails to evaluate whether the elimination of one intermediate stop and an indefinite delay in constructing the other violates Title VI and the Executive Order.

o BART has not specified whether it will study mitigations or less discriminatory alternatives, much less has it specified which mitigations and alternatives those will be.

o BART proposes to complete the equity analysis before it has put in place the general policies on public participation and on fare changes and mitigations that should guide the equity analysis.

•   The proposed corrective actions with respect to public outreach and limited English proficiency outreach suffer from major deficiencies, among them:

o The plan includes no provision for public participation of EJ populations in the development of these guidelines.

o The menu of outreach options is arbitrary, incoherent and incomplete.

o The plan is silent on the goals and objectives of the EJ public involvement program, and silent on how it will achieve those goals and objectives.

o The plan does not explain how BART intends to ensure robust EJ participation in meetings, focus groups, etc.

o The plan is silent on how BART intends to provide EJ participants with the information that they need to participate meaningfully, including information about alternatives and how well they address EJ needs and concerns.

o The plan to develop LEP guidelines is vague and incomplete.

o The plan to develop public participation guidelines has no specific timeframes.

•   The plan to adopt guidelines on major service changes and on evaluating and mitigating
fare changes is inadequate because:

o The fare change guidelines will not incorporate the basic steps of a disparate impact analysis.

o The plan to develop fare change guidelines has no specific timeframes, and these guidelines will not be in place in time to be utilized in the OAC equity analysis.

o The plan does not mention revisiting prior fare and service changes, such as the doubling of the SFO surcharge, which were adopted in the absence of the guidelines that BART now proposes to adopt.
•   To the extent that the plan imposes concrete timeframes at all, BART cannot demonstrate that is has the capacity to implement the corrective actions within the given timelines.

A more detailed discussion of these and other points follows.

BART’S CORRECTIVE ACTION PLAN IS INADEQUATE

A.   The “Affirmative Action” Required to “Overcome” BART’s Failure to Involve the Affected Environmental Justice Populations in the Development of the Current OAC Project Is Not The Superficial Exercise BART Proposes, But A New Decision Making Process In Which EJ Populations Have the Opportunity to Be Heard in the Planning of the Project.

The exit interview sheet prepared by FTA’s Title VI investigators at the conclusion of their on- site compliance review of BART in December (provided to us by your FOIA office) notes that it remained “To Be Determined” whether BART met the requirement of “inclusive public participation,” stating: “BART needs to document that it has engaged minorities and low- income persons at the planning and programming stages.”

That issue can easily be put to rest. BART’s own January 14 submission concedes that it engaged in no EJ outreach or participation on the shaping of the OAC Project into one that abandoned its initial fare and service features. “BART has not yet held meetings specifically to address the potential fare increase.” (Jan. 14 Title VI Fare and Service Change Analysis, p. 4.)

Similarly, BART completely failed to involve EJ communities in its decision to significantly delay or outright eliminate both of the two planned intermediate stops.2

Because Title VI and EJ populations were excluded from the development of the current project, the remedial task that faces BART today is not simply the clerical one of “documenting” outreach and engagement of EJ communities in which BART engaged at the planning stages, but of actually developing a new public participation process that can influence the design of the project. This will require full consideration of the views and needs of the affected EJ populations, followed by action that demonstrates that BART takes those views and needs seriously in its decision making process.

1.   BART Engaged No Meaningful EJ Participation in the Development of an OAC Project with a $6 Fare and No Intermediate Stops.

As described in our Title VI Complaint, the OAC Project for which BART awarded a design- build contract in December is a very different project from the one that Alameda County voters approved in 2000 and that BART’s EIR/EIS compared to a bus alternative in 2002. Unlike the original project, the current OAC Project will not provide service to locations en route to the airport to serve the needs of low-wage workers along the job-rich Hegenberger Corridor, and will charge a one-way fare of approximately $6.

These changes did not first come to light until April 2009,3 yet no community outreach to and participation of EJ populations has taken place since BART certified the EIR/EIS. BART has acknowledged that the only public discussions of the project since 2002 have been at mid-day agency meetings at MTC, the Port Commission, the Oakland City Council, the Alameda County Transportation Implementation Authority (ACTIA), and the BART board. The only “outreach to get the local community involved in the construction and operation of the Project” that BART engaged in during the critical period in which these fare and service changes were being made was to business, industry and contracting groups – groups that stand to benefit financially from the project regardless of whether EJ communities benefit from it. (Jan. 14 Title VI Fare and Service Change Analysis, p. 4.)

2.   BART Must Be Held to a Corrective Action Plan that Will Provide EJ Populations the Opportunity BART Previously Denied Them to Participate in Shaping the Characteristics of the Project.

As noted above, the law requires BART to “offer early and continuous opportunities for the public to be involved in the identification of social, economic, and environmental impacts of proposed transportation decisions” (Circular 4702.1A, ch. IV, § 9), including “meaningful opportunities for public involvement by members of minority populations and low-income populations during the planning and development of programs, policies, and activities.” (DOT Order, 62 Fed. Reg. at 18380, emphasis added.)

The participation of minority and low-income community members is neither “early” nor “meaningful” unless it stands a chance of making a real difference in final decisions about the design of the project. To be “meaningful,” participation must also be fully informed; participants must have the information they need about the pros and cons of the proposed project, including objective information about how it compares to the feasible alternatives.

Despite BART’s view that Title VI compliance is a matter of “technicalities,”4 this is not just a question of putting together a report that supports the pre-ordained conclusion to move ahead with the project in its current form. Meaningful outreach and participation require BART to inform EJ communities about a range of alternatives, and to contemplate the possibility that it will reach a different decision as a result of the input of EJ communities. Appropriate remediation of Title VI non-compliance requires the same, in order to “overcome” the effects of past non-compliance.

BART itself recognizes that it must assess impacts on minority and low-income populations “at the planning and programming stages” of proposed decision making (Draft Plan, p. 2), when there is still a chance for that information to make a difference, but its proposed corrective action plan fails to follow through on that requirement. To the contrary, the draft plan makes it clear that BART has already reached the pre-ordained conclusion that the OAC Project will proceed in its present form. For instance, it states that BART will

“[d]etermine if the proposed OAC service would have a disproportionately high and adverse effect on minority and low-income riders. If so, [BART will] demonstrate that the OAC meets a substantial need that is in the public interest or that alternatives would more [sic] severe adverse effects than the preferred alternatives.” (Sec. 5, “Conduct fare and service change analysis of the OAC project,” p. 5, emphasis added.)

BART here confirms that it has already decided what conclusion it will “demonstrate” before it has even begun the equity analysis. This attitude infects the entire plan. It also demonstrates that BART has much work to do before it can move ahead with a project, and that its airport connector project will not be Title VI compliant until it distributes its benefits and burdens fairly to EJ populations as well as to air travelers.5

B.   The Draft Plan Fails to Conduct The Required Evaluation, Which Is Not A Narrow One About the Impacts of Discontinuing Existing “AirBART” Bus Service, but Must Answer A Far Broader Question: Whether The New Service Will Deliver a Fair Share of Its Benefits to Affected EJ Populations.

BART’s January 14 submission took a very narrow view of the range of relevant impacts on Environmental Justice populations by focusing solely on the differences between the current AirBART and the proposed OAC project. (Jan. 14 submission, pp. 6-7, “What are the impacts of the Oakland Airport Connector (OAC) service and/or fare change have [sic] on minority or low- income communities?”)

Consistent with this cramped view of Title VI and Environmental Justice, BART’s plan continues to define the evaluation extremely narrowly. It does so by limiting both the range of affected low-income and minority populations and the range of impacts that the evaluation will examine. It limits the affected populations to current BART riders (and even more narrowly to current AirBART riders), and it limits the range of impacts to the negative impacts (i.e., the burdens) of eliminating AirBART service and charging a $6 one-way fare, with no reference to the benefits.

Title VI and the Executive Order require much more. As noted above, they not only prohibit the exacerbation of existing inequities, but affirmatively require that minority and low-income communities share fairly in the benefits of projects built by recipients of federal funds.
Particularly at the remedial stage, where harm has already been inflicted by the exclusion of EJ populations from participation in the decision making process, FTA is called upon to require a robust analysis that will address the broad questions framed by the statute and Executive Order and that will “affirmative[ly] . . . remove or overcome the effects of the prior discriminatory practice or usage.” (49 C.F.R. § 21.5 (b) (7).)

The appropriate Title VI and EJ “disparate impact” analysis is intuitive and straightforward. It requires, with respect to the fairness of the distribution of benefits:
5
(1) An identification of all disproportionately minority and low-income populations affected by the proposed decision;

(2) An identification of the transportation needs of those populations with respect to the corridor at issue;

(3) A determination of how well (and how timely) the proposed decision would meet the identified needs of EJ populations; and

(4) A comparison of the benefits it will provide to EJ populations with those it will provide to other populations.

BART’s proposal states in vague terms that it will “[a]ssess the effects of the proposed [OAC] service change on minority and low income populations by examining proposed route and span of service changes” (Sec. 5, p. 3) and will “[a]ssess the effects of the proposed [OAC] fare change on minority and low income populations” (Sec. 5, p. 4), but does not evidence any understanding of the specific steps required to do so. In particular, the draft Plan:

(1) Does not explain how BART will identify all of the affected EJ populations, but instead assumes that it need only address current BART riders.

(2) Does not make any mention of identifying the transportation needs of the affected low-income and minority residents who live adjacent to the project area or work along the Hegenberger corridor.

(3) In the absence of any understanding of the needs of the relevant EJ populations, proposes to “[d]etermine the . . . beneficial impacts” of the service change on those populations by purely mechanical procedures that miss the mark and treat the project as affecting only existing AirBART riders; and

(4) Does not make any mention of comparing the benefits to EJ populations with those to other populations served by the OAC project (namely, air travelers).

In sum, the Plan falls short at each of the four steps that must be part of a proper comparative analysis of benefits.

1.   Incomplete Identification of Affected EJ Populations

BART’s Plan is to analyze impacts on only one EJ population, namely, existing low-income and minority AirBART riders. It plans to limit itself to “[d]etermin[ing] the service area and demographic information on the existing BART and AirBART ridership.” (Sec. 5, p. 3.)

In skipping over the identification of all EJ populations who could benefit from new service on the corridor, BART ensures that it will not analyze any disproportionality of benefits and burdens accruing to a number of other directly affected EJ populations, including: (a) the two communities within a half mile of the project area have populations that are over 95% minority (North of BART, 98%; Columbia Gardens, 97%) and are also 25-33% low-income; (b) low- income and minority Oakland airport workers, and (c) low-income and minority workers employed by the numerous business along the Hegenberger corridor.

All of these populations could benefit from improvements along the Hegenberger corridor. There may well be other EJ populations that could also benefit. An equity analysis that does not begin by identifying all the affected EJ populations is a pointless exercise. This step should be spelled out in detail in the corrective action plan.

2.   Failure to Identify the Needs of the Identified EJ Populations, and to Determine How Well the Service Will Meet Those Needs

BART’s plan speaks vaguely of “[a]ssess[ing] the effects” of the proposed changes on EJ populations. It is striking, however, that BART’s plan identifies no process for asking the affected low-income and minority community members what their needs are. It intends instead merely to “compile the average transit travel times and available headways from various origins in the service area to selected destinations along the corridor and to the Airport” and to “compar[e] the travel time and headway statistics” for non-EJ riders. (p. 4.)6

This is not just an incomplete and mechanical analysis, it is the wrong analysis. The correct analysis would answer the question, “What kind of service would be beneficial to EJ populations?” An answer to that question not only permits the design of a project alternative that will meet those needs, but also enables the recipient to objectively answer the question about the benefits that its preferred project design will deliver to EJ populations. BART’s plan never even asks, much less proposes to answer, this question.

Answering questions about the needs of EJ populations requires robust outreach efforts and significant planning to obtain meaningful input from those populations. It also requires a willingness to incorporate the resulting input into the project. BART, however, proposes to prepare this analysis the same way it prepared its flawed January 14 submission and its present corrective action plan: with absolutely no outreach and participation of the affected EJ populations. Its timetable builds in no time for outreach, no time for public meetings, no time for public education, no time for the preparation of information about the proposed project and potential alternatives, and no time for responding to public input with changes in the corrective action plan or changes in the equity analysis.

3.   No Comparison of Benefits to EJ Populations With Benefits to Others

Having failed to identify the range of affected EJ populations, the needs of those populations with respect to service on this corridor, and how well the proposed service and fare changes meet those needs, BART’s plan does not permit it to make the ultimate comparison that Title VI and the Executive Order require. That is the comparison of the benefits (and burdens) that the service and fare decisions will deliver to EJ populations versus other populations.

Finally, BART’s plan is conspicuously silent on how it will analyze the fact that one intermediate stop will not be built at all, and the other will not be built at any time in the foreseeable future. Delay in the provision of benefits to EJ populations violates Title VI and the Executive Order, yet the equity impacts of that indefinite delay are not addressed in BART’s plan at all.

In short, BART’s plan to prepare an OAC equity analysis with no public participation that will reach a pre-ordained conclusion by answering the wrong questions is a far cry from the corrective action that its past non-compliance requires. FTA should require real remediation that corrects for the past failures as well as ensuring compliance in the future.

C.   The Plan Fails to Describe The Mitigation Measures and Project Alternatives that Will Be Analyzed and Includes No Specifics About How They Will Be Assessed

If the proposed service and fare decisions meet the needs of EJ populations less well than those of other populations – if, that is, those decisions exclude EJ populations from benefits, or provide them with delayed benefits – and if those disparities cannot be removed by mitigations that cure the disparities and make EJ populations whole, then BART may not proceed unless there is no equally effective and less discriminatory alternative.

The precise range of appropriate mitigations and alternatives to be analyzed will not be known, of course, until the affected EJ populations have had a meaningful opportunity to express their views, needs and concerns – something that BART did not provide during the preparation of its corrective action plan, and that BART’s plan does not contemplate at any time in the future. Even at the planning stage, however, a proper corrective action plan must describe in at least preliminary terms which specific project alternatives (e.g., a bus rapid transit alternative) and mitigations will be analyzed, and must include at least an initial plan for analyzing them.
BART’s plan does neither of these things. The closest it comes is to state that it will “[a]ssess the actions that the District proposes to minimize, mitigate, or offset any adverse effects of the propose[d] service change or fare on minority and low income populations.” (Sec. 5, p. 5.) It fails to identify these proposed mitigations, and makes no mention of project alternatives at all. With respect to both mitigations and alternatives, it fails to plan for public input and fails to say how it will “assess” them.

Ironically, BART will not yet have completed its plan in Section 4 (to “Establish Procedures for Evaluating and Mitigating Fare Changes”) by the date (May 2010) that it plans for the completion of this OAC equity analysis, because the end date for establishing those procedures is “ongoing.” (See Sec. 4, p. 3.) In other words, it is likely that BART will not have a procedure in place for mitigating fare changes when it is asked to analyze fare mitigation strategies for the OAC project.

BART’s plan, moreover, misunderstands the role of mitigations and alternatives in a proper Title VI analysis. Mitigations are actions that can be taken to remove disproportionate adverse impacts. In other words, a successful mitigation will result in a decision with no discriminatory effect. Alternatives, on the other hand, must be considered when mitigations are insufficient to remove discriminatory effects.

As an example, if a $6 fare disproportionately excludes EJ populations from the benefits of OAC service, or if the elimination or delay of intermediate stops disproportionately excludes EJ populations from the timely enjoyment of those benefits, then BART must first determine if those discriminatory effects can be removed by mitigations. Providing EJ populations with fare discounts, for example, might mitigate the first impact, but would not mitigate the second. Absent full mitigation of all disproportionate adverse impacts, the OAC project could not proceed in its current form unless no equally effective and less discriminatory alternative were feasible. This analysis, in turn, will require detailed consideration of alternative means and modes of providing the contemplated service, to determine if they can achieve the speeds and headways of the proposed OAC project, serve the required destinations, and meet requirements of technical and fiscal feasibility. One such alternative, which BART has refused to analyze in the past, is TransForm’s “Rapid BART” alternative. There may be others. The plan, however, specifies none of them.7

D.   The Plan Fails to Address Public Participation Requirements, Much Less Does It Remediate BART’s Past Non-Compliance.

As already noted, BART failed to conduct the necessary outreach and engagement of EJ populations at the planning stages of its decisions to eliminate all intermediate stops from the OAC service and to finance it in a way that requires a $6 one-way fare. BART failed to conduct any public participation in the preparation of its thoroughly flawed January 14 “equity analysis” submission to FTA. And BART conducted no outreach and participation in the development of its corrective action plan – to the contrary, it proceeded in complete secrecy.

These are serious failures to comply with important requirements of Title VI and EJ Executive Order. The draft plan, however, far from proposing to remediate these past acts of non- compliance, actually carries them forward. As already noted, the proposed plan to conduct a fare and service change analysis for the OAC project (Sec. 5) includes no public participation steps whatsoever, much less any steps designed to overcome past discriminatory non-compliance. And, as described below, both the proposed public participation guidelines (Sec. 6) and the proposed plan to develop a “language implementation plan” for limited English proficient (LEP) people (Sec. 7) are vague and inadequate, lack concrete timeframes, and were themselves created with absolutely no EJ outreach or input.

1.   The Plan to Establish Public Participation Guidelines Is Inadequate

As FHWA and FTA’s publication, PUBLIC INVOLVEMENT TECHNIQUES FOR TRANSPORTATION DECISION-MAKING (1996) explains, “[o]utreach to traditionally-underserved groups helps assure that all constituents have opportunities to affect the decision-making process. . .   These efforts [also] widen the basis of consensus on an implementable plan or project.” (Id.) More generally, “[t]hese groups are a rich source of ideas that can improve transportation not only for themselves but also for the entire community. Agencies must assume responsibility for reaching out and including them in the decision-making process – which requires strategic thinking and tailoring public involvement efforts to these communities and their needs.” (Id.)8

An appropriate plan of outreach to minority groups must “convey issues in ways that are meaningful to various cultural groups; bridge cultural and economic differences that affect participation; use communication techniques that enable people to interact with other participants; develop partnerships on a one-to-one or small group basis to assure representation; and increase participation by underrepresented groups so they have an impact on decisions.”9
Section 6 of the draft corrective action plan proposes to “[d]evelop guidance to obtain and consider public participation [of EJ populations] in transportation decisions using the appropriate mix of methods identified in the menu” on pages 5-6. The plan is inadequate for numerous reasons.

First, it provides no meaningful timeframes. Both the “start date” and the “completion date” for each step are listed as “ongoing,” providing neither FTA nor the public with reasonable benchmarks to assure that timely progress is being made.

Second, it provides for no public participation in the preparation of the very participation guidelines intended to cure its long-standing non-compliance with Title VI. BART staff cannot expect, in a vacuum, to create appropriate methods of outreach, appropriate guidelines for the time, place and manner of public meetings, and appropriate responses to community needs in connection with meaningful participation. That, however, is what BART’s draft plan proposes to do.

Third, the draft plan says nothing about what makes for an “appropriate mix” of its “menu” of methods to obtain and consider public participation. A coherent plan would begin with an identification of all of the affected EJ populations, and proceed from there to a determination of the appropriate means for outreach to, and the meaningful participation of, those populations.

BART’s plan is to provide a laundry list of outreach approaches, with no basis for determining how to achieve an “appropriate mix” among them.

Fourth, the plan contains an inadequate and incomplete “menu” of outreach methods. To take just one example, “[c]onduct public meeting in the community near the affected BART station(s)” implies that one meeting is enough,10 and says nothing about how BART will ensure robust participation in that meeting. It also says nothing about the objectives of that meeting,11 how its format or substance will help achieve those objectives, what preparation will be necessary to achieve those objectives, and what the community participation will be in the design of and preparation for the meeting.

The creation of an advisory body representing low-income and minority community members is conspicuously absent from BART’s “menu.”

Finally, the plan says nothing about steps BART will take to ensure that it gives EJ comments appropriate consideration and weight in its decision making processes. The whole point, after all, is to “increase participation by underrepresented groups so they have an impact on decisions.”12

This is no academic issue but one of the greatest importance in an agency that has explicitly excluded EJ populations from the planning stages of its current $6 fare, no intermediate stop, OAC project and that continues now to propose to exclude those same communities in the preparation of its long-overdue equity analysis and public participation guidelines.

2.   The Plan to Prepare an LEP Plan is Deeply Flawed, and Fails To Ensure Full LEP Compliance By Mandatory ARRA Deadlines

The draft plan fails to include sufficient descriptive detail on the actions that BART plans to take to (1) develop an LEP plan, (2) ensure ample public participation from LEP populations, and (3) ensure full compliance with LEP requirements by the mandatory ARRA deadlines.

The actions listed by BART are too vague, failing to provide any workable understanding of what specific remedial actions will be taken, much less how they will be taken. For example, no detail is provided in the draft plan as to how BART will conduct “outreach to the LEP population,” nor is any detail provided on BART’s internal capacity to conduct such multi- lingual outreach. No meaningful strategy is provided.

Other necessary actions are altogether absent from the draft plan. For example, no mention is made of specific steps that will be taken to ask LEP populations about their language and information needs, or about the language barriers that deny them full use of the BART system. Nor does the draft plan include a process for identifying additional resources to fill the identified language service gaps.

Finally, the timeline given by BART for these corrective actions is so elusive that it renders the plan meaningless. Once again, the majority of the steps that BART outlines for its LEP plan have no completion dates whatsoever, but instead are labeled as “ongoing.” Without enforceable deadlines for these actions, FTA will not be able to hold BART accountable for full and timely compliance. FTA may not approve a corrective action plan that does provide for a clear and complete roadmap for full compliance by the ARRA deadlines.

E.   BART Fails to Demonstrate In the Draft Plan That It Has the Capacity to Effectively Overcome Its Systemic Compliance Issues, and To Do So Within The Given Timelines.

FTA’s Title VI compliance review has revealed, even at this initial stage, not just inadvertent failures, but systemic ones. BART plans to begin to address some of those systemic failures by establishing policies that it failed to adopt in the past, such as a “major service change” guideline (draft plan, Sec. 3), procedures for evaluating and mitigating fare changes (Sec. 4), inclusive public participation guidelines (Sec. 6) and an LEP plan (Sec. 7). Its plans to adopt those policies are flawed for the reasons already given. What they also overlook, however, are the prior and ongoing decisions that BART has made and will continue to make in the absence of those guidelines. Appropriate corrective action requires that BART not simply put in place prospectively the procedures and guidelines that it has lacked, but also that it revisit past decisions that it made arbitrarily without the benefit of those procedures and guidelines.

A few specifics will illustrate the scope of the problem. First, in Section 4 (pp. 2-3), BART proposes to adopt procedures for evaluating and mitigating fare changes. These procedures will evidently not be in place soon enough to be applied to the OAC fare equity analysis, as their completion date is given as “ongoing.” Moreover, whatever fare equity analysis BART may have completed in connection with the doubling of its SFO surcharge last year was completed without the benefit of appropriate procedures, including mitigation procedures. This, and any other recent fare change, should be re-evaluated pursuant to a proper, and properly adopted, set of Title VI procedures.

Another illustration is the public participation guidelines (Sec. 6), which BART also does not anticipate adopting in time to use in connection with its OAC equity analysis. Again, the date of completion is “ongoing.”

Finally, BART is required to include a statement in the corrective action plan that indicates it “has the capacity to implement the accepted corrective action(s) in the manner discussed in the plan.” (Circular 4702.1A, ch. X, §§ 1(c) (3).) In addition, FTA is required to verify that assertion, as the Circular makes clear; in fact, “[i]f necessary, before making a decision [on the remedial action plan], FTA may conduct a site visit to substantiate information or statements contained in the recipient’s or subrecipient’s response.” (Id., § 1(e).)

BART has failed to include the required statement in its draft plan. Even if it were to include that statement in the final plan, its systemic failures to fulfill its Title VI obligations cast grave doubt on its capacity to overcome deeply engrained institutional behaviors on the fast track that it proposes. BART’s poor record is demonstrated by, among other things, its failure to conduct an equity analysis to date; its thoroughly deficient draft equity analysis, submitted to FTA on January 14; and the pervasive deficiencies in its draft corrective action plan. FTA should not accept BART’s assurances without first thoroughly substantiating them.

CONCLUSION

BART’s plan, for all of the reasons given above, fails to remediate the effects of its past non- compliance, and continues to perpetuate its disregard of EJ populations into the future. FTA has the remedial power to hold BART accountable, and is obligated to ensure that EJ populations do not once again fall prey to expediency. We stand ready to enforce these obligations, and appreciate the opportunity to continue to actively participate in your process. In particular, we look forward to providing additional comment when FTA “decide[s] what action(s) are necessary and appropriate to bring [BART] into compliance.” (Circular 4702.1A, ch. X, § 1(e).)

Thank you for considering our comments in this matter.

Very truly yours,
Richard A. Marcantonio
Managing Attorney

Enclosures:
BART January 28 draft corrective action plan
February 2 Public Records Act letter to D. Dugger

Cc:
Ms. Dorothy Dugger, BART General Manager (via electronic mail)
Ms. Cheryl Hershey, FTA Office of Civil Rights (via electronic mail)
Ms. Amber Ontiveros, FTA Office of Civil Rights (via electronic mail)
Office of Mayor Ronald Dellums (via electronic mail)

Footnotes

1. FHWA and FTA, PUBLIC INVOLVEMENT TECHNIQUES FOR TRANSPORTATION DECISION- MAKING (1996). Accessed at http://www.fhwa.dot.gov/reports/pittd/ethmin.htm and http://www.fhwa.dot.gov/reports/pittd/bridge1b.htm.

2. As noted above, the Executive Order prohibits “the denial of, reduction in, or significant delay in the receipt of, benefits of DOT programs, policies, or activities.” (DOT Order, 62 Fed. Reg. at 18381, emphasis added.)

3. The possibility for a $6 fare was not mentioned until April 2009 in connection with the need for a TIFIA loan. While the elimination of the Edgewater stop was the subject of a 2007 supplement to the EIR/EIS, the decision that the project would be built without a Doolittle stop was not publicly discussed until April 2009, when BART was preparing to issue a design-build RFP that did not include any intermediate stops.

4. Referring to the non-compliance documented in your January 15 letter, BART’s board chair told MTC on January 27 that “What we’re asking for is an opportunity to make sure that the technicalities that I humbly believe is what they are can get resolved.”   See http://www.bart.gov/news/barttv/accessible.aspx.

5. This attitude makes it clear that BART does not yet understand the importance of Title VI compliance except in very narrow terms, and counsels that FTA should not approve Section 2 of the plan without first seeing the letter BART proposes to draft to staff “emphasizing the importance of compliance with Title VI.” (Sec. 2, p. 1.)

6. Even in conducting this limited comparison, BART appears to be assuming that the transit alternative for riders “in the service area” – AC Transit – will continue to operate a steady level of service indefinitely. See Sec. 5, p. 5 (“Assess the alternatives available for those affected by the fare increase or major service change including: Existing AC Transit bus services.”) In fact, AC Transit service levels, measured in revenue vehicle miles of service, have declined consistently and dramatically over a period of decades. Additional service cuts have already been adopted, effective March, and further cuts are likely to have taken place well before the OAC project begins revenue service.

7. A valid comparison of alternatives, of course, presumes that the characteristics of the preferred alternative are accurately assessed and portrayed to the public. In the course of developing the current project, key components have changed, in addition to the fare level and absence of intermediate stops. These include increased system travel time and reduced rider convenience, both of which degrade the utility of the OAC project. In comparing the OAC project with alternatives to determine whether they are equally effective, the reduced effectiveness of the OAC project must be objectively rendered.

The plan suggests that “service levels and travel time characteristics of the OAC service can be obtained from the BART Incremental Ridership Model.” (p. 4.) It is unclear which characteristics these would be as there are outstanding inconsistencies between the 2002 EIR's travel time calculations for the existing AirBART and the 2009 travel times generated for the Oakland Airport Connector. These include using different standards for passenger walk times. Further, BART’s calculations for walking distance do not use an average walk time based on the existing two terminals, instead relying on walk times for Terminal 1 only. This is further exacerbated by the possibility of a future Terminal 3 which will be even further from the OAC station.

8. Accessed at http://www.fhwa.dot.gov/reports/pittd/cover.htm.

9. Accessed at http://www.fhwa.dot.gov/reports/pittd/ethmin.htm.

10. Similarly, no rationale is given for the decision that “one focus group per project” issufficient. (p. 6.)

11. FHWA and FTA’s publication, PUBLIC INVOLVEMENT TECHNIQUES FOR TRANSPORTATION DECISION-MAKING (1996), emphasizes the importance of “Clearly defin[ing] the goals and objectives of the public involvement program.” Accessed at http://www.fhwa.dot.gov/reports/pittd/bridge1d.htm.

12. Accessed at http://www.fhwa.dot.gov/reports/pittd/ethmin.htm (emphasis added).