TRANSPORTATION SOLUTIONS DEFENSE AND EDUCATION FUND
16 Monte Cimas Avenue
Mill Valley, CA 94941
415-380-8600
August 8, 2003
By U.S. & E-mail
Mayela Sosa
Federal Highway Administration
980 9th Street, Suite 400
Sacramento, CA 95814
Donna Turchie
Federal Transit Administration
201 Mission Street, Suite 2210
San Francisco, CA 94105
Re: MTC Certification Review
Dear Ms. Sosa and Ms. Turchie:
TRANSDEF is a non-profit dedicated to improving regional planning for transportation, air quality and land use in the San Francisco Bay Area. Much of our work has involved deep involvement with the activities of MTC, because of the centrality of its role to our mission. We have watched ten years of degradation of the quality of life in our region, facilitated by an MTC whose main task, the allocation of public funding for transportation, is an exercise in political dealmaking. We are convinced that if MTC were to shift from being a broker to becoming a planning agency focused on optimizing our future, that our region several decades later would be a much better place to live. (See San Francisco Magazine article, December 2002, appended hereto.)
We have been very active and very vocal advocates at MTC for the last decade. MTC's absolute refusal to give any meaningful consideration to our comments, or to provide a fair process in the development of the last 4 RTPs led us, out of desperation, to form coalitions that have sued MTC twice and EPA twice, resulting in two sets of court victories and a conformity lapse lasting half of 2002. (See attached Litigation Report.) This litigation would not have occurred had MTC not utterly stonewalled the public. MTC's litigation expenses, losses in court and conformity lapses are the direct result of management's decision to go through the motions of public involvement without substantively using the public input gathered. The willfulness of this management stance is all the more surprising, given that MTC received a corrective action from the last certification review for complaints of the very same abuse of Metropolitan Planning regulations.
MTC has expended large sums of federal funds putting forward frivolous defenses and frivolous appeals in the cases we filed. They have delayed these cases and expanded their administrative records far beyond reasonable levels. These cases could have settled at a much lower cost, and with dramatically more benefit to the region. The MTC recently authorized an appeal of a Court Order to develop a plan within 60 days to reduce VOC by 26 tons/day, something they had neglected to do in their Ozone Attainment Plan. Rather than working in a public-spirited way to clean up the air, benefitting everyone's health, MTC has insisted on fighting, in what we see as a dinosaur's attempt to hold onto power and prerogative.
The continuing loss of these cases by MTC has been a waste of public funds and evidence of questionable judgment. This is why we want the Review Team to focus on MTC's governance structure. We believe that if MTC were required to meet current standards for composition of a governing board, it would result in greater diversity of opinion, leading to the governing board acting as a policy board, rather than as a rubber stamp for management.
Public Involvement
As a result of extensive testimony at the last certification hearing, MTC ended up with 2 corrective actions. Although your agencies signed off on MTC's responses to those corrective actions, we think that nothing was accomplished other than the pushing of paper. MTC's Public Involvement Assessment was a farce. The scope of work was designed without any public input. The contractor selected has an extensive political campaign track record in shaping public opinion, raising strong doubts as to suitability for neutral data collection and assessment. The extensive interviews did not include speaking to any critics of MTC. The process was basically a selfassessment. If you look closely at the details of the input received, in the Appendix of the report, it is striking how many people did not feel listened to. (Please see Public Involvement Exhibits).
The issue of political dealmaking is critical in understanding the role of public input. Public input plays little or no role in decisionmaking at MTC. It is essentially a fifth wheel, something that just gets in the way. The public is not the target audience to be pleased -it is local government. This is inherent in its governance structure--the appointing bodies for Commissioners are local governments, so that is where MTC's heart lies. This is why MTC continues to have very elaborate public input processes, but fails entirely to fulfill its federal mandate to meaningfully consider the input it receives as part of its decisionmaking process. Its structure pushes it to ignore that input as irrelevant to the need to satisfy various elected officials' edifice complexes.
In a recent California Public Records Act request for documents pertaining to this Federal certification review, TRANSDEF requested that a series of electronic files be sent to us by e-mail. MTC insisted on creating a CD with the files, and claimed their policies did not allow them to be e-mailed. Instead, MTC invoked a policy that required that a check for the cost of the CD and postage must be received by them before the CD could be mailed. Given that MTC is right now opposing a fee petition for $1.3 million from our attorneys, and given that TRANSDEF personnel are at MTC's offices many times a month, the unwillingness to wait for a $6 check appears to be both mean-spirited and consciously intended to impede the flow of information. TRANSDEF requests the Federal review team to issue a corrective action, requiring an update of policies to make documents available by electronic mail.
Title VI
The response to the corrective action calling for the development of an environmental justice equity analysis methodology was similarly non-responsive. While there was a process, it was truncated and non-responsive. The Advisory Group was basically told how the analysis would be done. The accessibility analysis, which was the principal result of the process, was not something requested by the advisory group. It was, instead, a retread from the previous RTP.
Furthermore, focus on that accessibility analysis was a blatant refusal to engage in an open review of the EJ issues in progress at that very time. We later learned that MTC had responded to an administrative EJ complaint about the unfairness in the allocation of funding between suburban and urban residents of the Bay Area-the very heart of the subject matter of equity analysis--which in a stunning act of bad faith, it did not disclose to the EJ Advisory Group. When the Advisory Group asked that the EJ analysis focus on the allocation of funds, it was met with great resistance, despite the fact that MTC had responded to the complaint with extensive financial data. Clearly, MTC at that moment believed that demonstrating equity required showing how the money is distributed. But when it came to responding to the corrective action, MTC pretended to not see the relevance, insisting instead on imposing the irrelevant accessibility analysis on the Advisory Group. (Please see Title VI exhibits.)
It was partly because of this manipulation and bad faith that my group, TRANSDEF, filed an EJ administrative complaint with DOT and EPA. The DOT complaint seems to have stalled. Interestingly, there was a Civil Rights review of MTC in May, but no one from your agencies contacted us, despite the existence of an active complaint.
MTC misrepresented itself on Civil Rights matters. In its response to Item 2a of FTA's "Documents Required for Title VI On-Site Review Advance Preparation" seeking a list of any active lawsuits or complaints, MTC responded "none." MTC placed a discussion of our complaint on the Commission's agenda for a closed session. TRANSDEF objected that, because this was not litigation, it was not exempt from the California Brown Act, which requires government to take place in the open. MTC was clearly aware of the existence of the complaint, and had no basis to claim that it was no longer active.
In its response to FTA regarding the administrative complaint discussed above, MTC pursued a strategy of burying FTA in irrelevant financial detail, while hiding damning evidence in plain sight. On page 4 of 19 of its response, which was submitted to the Title Vl/EJ Compliance Review, it shows $219.4 million of AB 1107 funds going to AC Transit and a similar amount to MUNI. With simple arithmetic, it is then possible to determine that BART received $1.316 billion from this source, a sum vastly overshadowing any of the figures put forward by MTC.
With the additional information that MTC itself sponsored AB 1107, a picture emerges that MTC took pains to not disclose: It has created a discriminatory funding system for BART at the expense of AC Transit. We strongly disagree with FTA Civil Rights Officer Derrin Jourdan's conclusion that "a preponderance of the evidence submitted does not suggest that the MTC's actions were racially motivated or in violation of Title VI of the Civil Rights Act of 1964." The funding disparities between the two agencies, once the 'hidden' $1.316 billion is brought into the analysis, are as stark as the difference in the racial demographics of the ridership of the two operators.
Please note that MTC has made a lot of PR mileage from its adoption of a Lifeline transit network for low income people. The Lifeline Transportation Program has a prominent place in MTC's documents for the Title VI/EJ Compliance Review. One would never know from reading the documents that it is all for show. No funds have been actually committed to implement the program. It is never mentioned in the 2001 RTP that this proposed transit network did not 'make the grade' to be funded. Instead, huge sums of regional discretionary money went to the suburbs to fund the BART to San Jose project. The 2001 RTP discriminated against people of color and low income people by giving them a disproportionately low share of the proceeds. The EJ analysis that was done for the RTP evaded this central issue, despite the express request of the Advisory Group.
RTP
We think it is critical for the reviewing agencies to understand the inherent
problem at MTC. It functions as a clearinghouse for political deal making. The (internal) measure by which this agency evaluates itself is whether it has achieved buy-in for its RTP by the political leaders of the region. MTC's funding decisions demonstrate that it is decidedly not interested in achieving results on the ground. Otherwise, it could not possibly approve the extraordinarily cost-ineffective projects that come before it. BART to SF0 is the most recent one completed, with BART to San Jose being the most expensive and fiscally unconstrained project this side of the Big Dig. (Please see RTP Exhibits.)
What passes for regional transportation planning here in the Bay Area is some politician putting forward a proposal. If there is political support for it, no matter how silly it looks from a professional transportation standpoint, MTC takes that as its marching orders. MTC is unwilling to exercise its professional responsibility to achieve a functional cost effective transportation network. It is unwilling to give its own opinion on the projects proposed by counties for their sales taxes and/or the RTP. This is something FTA is mandated to do with its New Starts program-it has to evaluate projects. MTC takes pains to avoid doing that.
The 2001 RTP had alternatives that varied only slightly from each other. Thus, the environmental review process could not meet its mandated function to try out a variety of policy options, including the identification of an environmentally superior alternative. The result was an environmental report that identified significant impacts (or would have, if it hadn't been lying) but did nothing to mitigate them or optimize future conditions. This is the opposite of planning. 90% of the funds in the Plan were off limits to re-allocation, due to a rigid policy of honoring past commitments, no matter how irrelevant they were to current conditions or how bankrupt the policy was that led to them. This inevitably led to not being able to have a significant positive impact on future conditions. The criticism I had of the 1994 RTP, prior to the founding of TRANSDEF, was still valid for the 2001 RTP because nothing in the process had changed.
Governance
MTC's current governance structure was grandfathered in by ISTEA, because it was in existence prior to ISTEA. Oddly enough, it is only an historic accident that the Bay Area no longer has a joint COG/MPO. The previous agency with MPO duties, ABAG, also had land use responsibilities. Because an employee was caught embezzling funds, a new agency was created, without any direct involvement in land use. TRANSDEF requests the Federal Certification Review team to issue a corrective action formally asking the Governor and local city and county officials to support an end to grandfathering, so that MTC is required to come into compliance with the requirements of 23 C.F.R. § 450.304(i) and (h). We find no reason to exempt MTC from national requirements, when its track record for delivering regional transportation planning is so dismal.
Air Quality and TIP
Approximately 50% of the ozone precursors in the Bay Area come from on-road mobile sources, making the MPO a critical partner in cleaning up the air in this nonattainment area. MTC's refusal to do anything beyond the absolute minimum for air quality led us eventually into court in multiple lawsuits. Air quality is not a factor in what passes at MTC for transportation planning. MTC has been especially uninterested in remedying the pattern of sprawl it has facilitated over the years, a pattern that locks in long term dependency on the automobile, with corresponding excessive emissions.
MTC was especially resistant to public comment during the conformity process for recent TIPs due to the conformity lapse. Happily, FTA/FHWA did not accept MTC's bogus rationale that specific non-exempt projects were supportive of implementation of TCM 2 during the lapse. (Please see Air Quality and TIP Exhibits.)
Current Conditions
Recent positive changes in MTC's behavior may partially be the result of years of pressure from our transit advocacy community. We've noticed a shift towards more oversight of its transit operators' environmental justice practices. The recent 2005 RTP kickoff event was astonishing, in that the agenda showed more openness than we've ever seen at MTC. At that event, the public firmly said that it wanted to see past RTP commitments reviewed for current relevance; it wanted sharply focused RTP goals and a strong link between transportation and land use. These are the very positions we've been strongly advocating for the last ten years. We would like the reviewing agencies to take specific note of this progress towards openness and problem-solving, and request that the trend continue. We would further ask that you specifically task MTC with demonstrating cost effectiveness of all projects adopted into the next RTP.
Requests for Corrective Actions
1. Require MTC to make available to the public, in its library, the responses it provided for the Title VI/Environmental Justice Compliance Review and the MPO Certification review.
2. Require MTC to change its policies, making documents available by electronic mail.
3. Formally ask the Governor and local city and county officials to support an end to grandfathering, so that MTC is required to come into compliance with the requirements of 23 C.F.R. § 450.304(i) and (h).
4. Require MTC to demonstrate the cost-effectiveness of all significant projects adopted into the 2005 RTP.
5. Require MTC to demonstrate and document meaningful consideration given to public input in its decisionmaking process.
The transit advocacy community has a unique perspective for the review team, in that we are one of the few interest groups that isn't dependent on MTC for funding, and thus, can give you insights unavailable elsewhere. We would like to meet with you in a face-to-face setting, similar to groups you interviewed, to offer further detail from our special vantage point. Thank you for this opportunity to provide you with our impressions and conclusions as to the functioning of MTC.
Sincerely,
David Schonbrunn,
President
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Current Litigation
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TRANSPORTATION SOLUTIONS DEFENSE AND EDUCATION FUND
16 Monte Cimas Avenue
Mill Valley, CA 94941
415-380-8600
Current Litigation (as of 8/03)
Bayview Hunters Point Community Advocates v. MTC Federal District Court
• Other Plaintiffs: TRANSDEF, Communities for a Better Environment (CBE), Urban Habitat, Our Children's Earth Foundation, Latino Issues Forum, Sierra
Club
• Action sought to enforce Transportation Control Measure (TCM) 2, requiring a 15% increase in regional transit ridership over 1982/83 levels.
• The goal of this action is a major increase in funding for urban transit systems.
• Obtained Court Orders 1) finding MTC is liable to achieve and maintain the specified ridership increase, 2) requiring MTC to demonstrate how the 15% increase will be achieved by Nov. 2006, through adopting a Regional Transportation Plan amendment within 6 months, 3) requiring MTC to file quarterly reports of its progress and 4) requiring MTC to file annual ridership reports. 177F. Supp. 2d 1011;212F. Supp. 2d 1156
• Defendant paid $100,000 to San Francisco Foundation to assist low-income and communities of color to participate in transit planning, in settlement of civil penalties for violation of the Clean Air Act.
• Defendant adopted a Regional Transportation Plan Amendment, as ordered by Court.
• Plaintiffs filed a Motion for Contempt to force more aggressive action to increase transit ridership, which was denied.
• Defendant rejected a proposed settlement of attorneys' fees claim. Plaintiffs have filed an attorneys' fee petition and reply brief.
• Defendant's appeal is fully briefed, awaiting oral argument.
CBE & TRANSDEF v. MTC, BAAQMD, CARB State Superior Court
• Action under CEQA to require preparation of an EIR on the 2001 Ozone Plan and under the CA Clean Air to require its procedures be followed for development of transportation control measures.
• Obtained Court Orders 1) requiring a Plan within 60 days to reduce VOC emissions by 26 tons per day and 2) EIRs on two area source control measure rules.
• This should cause EPA to reverse its proposed approval of the Bay Area 2001 Ozone Plan, thereby affecting conformity for the RTP and TIP.
• Defendant MTC's Commission has authorized an appeal.
TRANSDEF v MTC, BAAQMD, ABAG & CARB Administrative Agencies EPA & DOT
• Environmental justice administrative complaint.
• Seeks to involve federal agencies in pressuring MTC and BAAQMD to involve low-income and minority communities in air quality and transportation planning, and stop discrimination in the allocation of transportation investments.
• EPA rejected Petition without prejudice, as premature.
• DOT has not processed the complaint.
Past Litigation
Bayview Hunters Point Community Advocates v. EPA Federal District Court
• Other Plaintiffs: TRANSDEF, CBE, Urban Habitat, Our Children's Earth Foundation, Latino Issues Forum, Sierra Club
• Enforced EPA's duty under Clean Air Act to act on 1999 Bay Area Ozone Plan.
• Obtained Consent Decree in which EPA committed to Final Rulemaking.
• EPA subsequently partially disapproved 1999 Ozone Plan and found that the Bay Area had, once again, failed to attain the ozone standard. This triggered a conformity freeze, which became a lapse on 1/ 21/02, shutting off approval and funding for new highway projects.
TRANSDEF v. EPA Federal Court of Appeals
• Other Petitioners: CBE, Our Children's Earth Foundation
• Action sought to invalidate EPA approval of Bay Area's Motor Vehicle
Emissions Budget, needed for MTC's conformity determinations, a part of RTP and TIP approvals.
• This would have put the region back into conformity lapse (shutting off
highway expansion funds) and invalidated RTP and TIP approvals.
• Obtained a Stay 7/23/02 from Ninth Circuit, blocking adoption of the 2003 TIP.
• Inspired by plaintiffs' action, Sacramento Metropolitan and Yolo-Solano Air Pollution Control Districts filed an MVEB adequacy review petition, focused on
reducing inter-regional ozone transport. Districts settled their claims in exchange for expanding Smog Check II to the Bay Area, requiring an act of the Legislature.
• Petition dismissed 11/13/02 for lack of standing. 28(j) letter filed, noting
recent Ninth Circuit case granting standing to a group situated similarly to
Petitioners.
• Stay lifted 12/24/02.Petition for rehearing en banc rejected 2/04/03.