Introduction 1103 I. Inequitable Distribution of Benefits and Burdens 1104 II. Access to Opportunity 1107 III. Fair Governance 1109 Conclusion 1112 INTRODUCTION
In their provocative article, Confronting Inequality in Metropolitan Regions: Realizing the Promise of Civil Rights and Environmental Justice in Metropolitan Transportation Planning, Professors Richard A. Marcantonio, Aaron Golub, Alex Karner, and Nelson Dyble ("the Authors") argue that regional transportation system planning, beginning in the mid-twentieth century, unfairly burdened urban areas while benefiting white suburban residents. (1) The Authors argue that federal law requiring metropolitan planning organizations ("MPOs")--regional planning boards (2)--to engage in "equity analysis" of regional plans provides an opportunity for addressing inequality. (3) The Authors link MPO governance to key civil rights and environmental laws, namely Title VI of the Civil Rights Act of 1964, Executive Order 12898 on Environmental Justice, and the duty under the Fair Housing Act to "affirmatively further fair housing" ("AFFH"). (4) Regional equity analyses, they claim, can address disparities in governance, fairly distribute the benefits and burdens of transportation infrastructure planning, and tackle inequality across regions. (5)
The Authors' final conclusion is that the U.S. Department of Transportation ("DOT") adopt a rule similar to the U.S. Department of Housing and Urban Development's ("HUD") AFFH rule, which requires meaningful action to address fair housing and identifies six concrete fair housing goals for state, local, and regional authorities receiving HUD funds. The likelihood of the DOT adopting such a rule under the current administration remains to be seen. Especially given President Trump's focus on transportation project rebuilding, (6) infrastructure development and regional plan adoption will be critical in the coming months and years. Methods for conducting MPO equity analysis are, therefore, crucial.
This Article makes three observations about the Authors' article, corresponding to the three areas for reform listed in Part V of their piece. Each area is addressed in turn: (1) a lack of meaningful bargaining for benefits and burdens; (2) an insufficient MPO equity analysis metric; and (3) MPO governance issues. For each of the proposed areas this Article discusses potential issues and proposes ways that state and local government can innovate to address them in the absence of stronger equity requirements from the DOT.
INEQUITABLE DISTRIBUTION OF BENEFITS AND BURDENS
The Authors' article begins by tracing the history of metropolitan growth and interstate freeway construction as contributing factors to inequality across regions. (7) While freeways benefited suburban middle-income whites, they had a negative impact on low-income residents of color who had different needs and who bore the brunt of freeway construction. (8) Many freeways built with urban renewal funding displaced low-income communities, dubbed "slums," to make way for private investment. (9)
The Authors argue that the benefits of transportation development should be measured, but so should the burdens. (10) The DOT, they write, should direct MPOs to use a standard similar to the AFFH rule recently adopted by HUD to take "meaningful actions" to address significant disparities in housing needs and in access to opportunity. (11) Federal guidance should also be applied to define "burdens," to avoid physical or economic displacement of low-income community residents and businesses, or increasing exposure to health risks. (12) As an example, the Authors offer Portland Metro, the MPO for the Portland, Oregon region, which in 2015 convened a working group of government and non-governmental organizations and interested people to develop an equity analysis to screen projects for the regional plan. (13) This creates an a priori approach to developing equity analysis before a regional plan is created instead of analyzing the plan after the fact. (14)
This proposed solution is compelling. However, one wonders who specifically will participate in such an effort, and who will be responsible for organizing the respective parties. Such organizing work takes resources and time. Groups have their own dynamics which can sometimes delay effective results. (15)
While communities do organize around individual development projects to advocate for community benefits agreements ("CBAs") related to expanding transportation infrastructure, these campaigns require resources and momentum. In Somerville, Massachusetts, for example, a group called Union United is seeking a CBA to avoid displacement of long-time residents by a new transit-oriented mixed-use development project. (16) Such a campaign takes significant resources both to organize and negotiate, yet only benefits a single project. (17)
Given the effort that it takes to deliver benefits through a CBA, an equity analysis before the fact is very appealing. It would be interesting for more MPOs to follow the Portland Metro example and develop an equity analysis prior to creating a regional plan. Studying such equity analyses prior to plan creation could be a fruitful area of further study.
Those who study CBA campaign research argue that agreements must be negotiated by diverse, inclusive, and accountable parties which represent community interests. (18) To the extent that CBA negotiations function like mini equity analysis committees in how they consider benefits and burdens of a particular development project, studying the effectiveness of CBA negotiations and campaigns might be useful to MPO equity...