CONFRONTING INEQUALITY IN METROPOLITAN REGIONS: REALIZING THE PROMISE OF CIVIL RIGHTS AND ENVIRONMENTAL JUSTICE IN METROPOLITAN TRANSPORTATION PLANNING.

• Author: Marcantonio, Richard A.

Introduction 1018 I. The Metropolitan Region and Regional Inequity 1022 A. Early Suburbanization 1023 B. White Flight, Subsidized Post-War Suburbanization, and Effects on Central Cities 1024 1. Federal Transportation Policy Accelerates Suburbanization and Wreaks Urban Destruction 1026 2. Increasing Citizen Participation and the Emergence of Regional Governance 1027 C. Regional Planning Strengthened, but Too Little Too Late? 1029 II. Regional Transportation Planning Drives Inequality 1033 A. Governance 1034 B. Access to Opportunities 1035 C. Benefits and Burdens of Investments 1037 D. Case Study: Plan Bay Area and the "Six Wins" Coalition for Social Equity 1038 III. Legal Foundations for Addressing Equity in Regional Planning 1040 A. Title VI: Affirmative Obligations and Judicial Enforcement 1041 B. Environmental Justice 1047 C. The Fair Housing Act: Affirmative Obligations and Judicial Enforcement 1048 D. The Role of Federal Administrative Enforcement 1053 IV. The MPO Equity Analysis in Promise and Practice 1055 A. Equity Analysis in Promise 1056 1. Prophylactic Function 1057 2. Support Creation of an Action Plan 1058 3. Facilitate Administrative Enforcement 1058 4. Improve Civic Engagement 1058 5. Improve Plan Outcomes 1059 6. Aid Local Jurisdictions in Complying with Their AFFH Obligations 1060 B. Equity Analyses: Federal Guidance 1060 1. 1999 FHWA/FTA Title VI Memo 1061 2. FTA Title VI Circular 1062 3. Agency Environmental Justice Orders 1064 C. Equity Analyses in Practice 1065 1. Emergence of a Consistent Approach 1065 2. Continued Methodological Deficiencies 1067 V. Reforms Needed 1069 A. Achieving Fair Governance 1069 B. Improving Access to Opportunity 1071 C. Analyzing and Addressing the Inequitable Distribution of Benefits and Burdens 1074 Conclusion 1077 INTRODUCTION

Civil unrest erupted in American cities throughout the 1960s in response to police brutality, racial profiling, discrimination, and unemployment. Riots engulfed Los Angeles in 1965; (1) Detroit and more than a dozen other cities followed in the summer of 1967. (2) While the type of overt racism and discrimination that existed in the years leading up to the 1960s is largely a thing of the past, the continuing realities of police brutality gave rise to similarly profound unrest in Ferguson, Missouri and Baltimore, Maryland, in 2014 and 2015, respectively, as demonstrators protested failed governance and a lack of opportunity. (3) Indeed, these troubling and persistent issues surfaced in the landmark 2015 Supreme Court decision, Texas Department of Housing and Community Affairs v. Inclusive Communities Project, (4) concerning the location of affordable housing in areas of concentrated poverty. In the words of Justice Kennedy, writing for the majority:

De jure residential segregation by race was declared unconstitutional almost a century ago... but its vestiges remain today, intertwined with the country's economic and social life .... Rapid urbanization, concomitant with the rise of suburban developments accessible by car, led many white families to leave the inner cities. This often left minority families concentrated in the center of the Nation's cities. During this time, various practices were followed, sometimes with governmental support, to encourage and maintain the separation of the races: Racially restrictive covenants prevented the conveyance of property to minorities... steering by real-estate agents... and discriminatory lending practices, often referred to as redlining, precluded minority families from purchasing homes in affluent areas .... By the 1960's, these policies, practices, and prejudices had created many predominantly black inner cities surrounded by mostly white suburbs.... [T]he National Advisory Commission on Civil Disorders... concluded that "[o]ur Nation is moving toward two societies, one black, one white--separate and unequal." (5) Continuing disparities manifest themselves in astonishingly high income and wealth inequality between whites and people of color, especially African Americans and Latinos. (6) Although race and class residential segregation diminished somewhat in the late 1980s, differential access to opportunities remains a significant problem today. (7) Transportation is both a key driver of these continued problems and a sector on which billions of dollars of federal, state, regional, and local funds are spent every year. Although transportation infrastructure is but a single component of a mix of factors at play, there is overwhelming evidence linking transportation with employment outcomes and other opportunities, especially in communities of color. (8)

Transportation is inextricably bound up with land use. By making land available for development or by changing the speed with which one can travel between locations, transportation infrastructure affects the relative attractiveness of different locations. As transportation technology has advanced from the horse-drawn carriage, to the electric streetcar, to the automobile, the spatial extent of urban development has expanded ever outward. (9) The result is the metropolitan region--agglomerations of cities and counties bound together by commuting patterns and shared housing and labor markets. Congress recognized the importance of planning at the regional scale when it created metropolitan planning organizations ("MPOs"). (10) Despite a regional planning emphasis, individual localities within a region still wield substantial power and can undermine regional planners' goals by, for example, refusing to permit affordable housing or support investments in regional public transit systems. (11) After decades of investments that facilitated suburban growth, some locations enjoy access to high quality schools, health care facilities, and transportation, while others are locked in a cycle of decline. (12) By shaping regional investments, MPOs affect three important "drivers" of regional inequality: unrepresentative governance, unequal access to opportunities, and unfair distribution of the benefits and burdens of regional growth. Consequently, MPOs hold great potential to address equity issues.

This Article will address the transportation planning institutions bound by law to advance the twin goals of civil rights and environmental justice. We contend that stronger guidance requiring robust equity analyses for regional plans (13) has the potential to result in better planning and outcomes for metropolitan regions. First, the Article begins with a discussion of the historical development of metropolitan regions in the United States and the devastating burdens that regional growth imposes on certain communities. Second, the Article surveys MPOs and the standards for regional planning set for them by federal law. (14) Third, the Article examines key pieces of federal law and executive guidance directly impacting MPO planning, including Title VI of the Civil Rights Act of 1964, Executive Order 12898 on Environmental Justice ("EJ Executive Order"), and the duty under the Fair Housing Act to "affirmatively further fair housing." (15) The Article then scrutinizes the "equity analysis" required of MPOs. Lastly, the Article reflects on the potential benefits and shortfalls of the existing practice, and offers proposals to strengthen the equity analysis requirement that derive from experience working with these planning processes.

1. THE METROPOLITAN REGION AND REGIONAL INEQUITY

   Twentieth century metropolitan growth in the United States resulted in regions nominally linked by transportation infrastructure and shared housing and labor markets, but separated by vast differences in racial composition, wealth, crime, health outcomes, and access to opportunities like quality education and employment. (16) These disparities often map consistently onto patterns of racial segregation. (17) Research on "regional equity" focuses on understanding maldistributions of opportunity within regions and has identified land use, housing, and transportation as policy elements affecting equitable outcomes. (18)

   This Part traces the development of the country's metropolitan areas and the racial inequalities that accompanied it, emphasizing the connected nature of land use, housing, and transportation. It focuses on the last century of metropolitan expansion, suburbanization, and the solidification of unequal regions across the country, and highlights the challenge of affecting regional outcomes due to the virtual non-existence of directly elected regional governments. (19) The Part closes by highlighting the innate potential for MPOs--regional planning agencies empowered by federal and state law to make decisions about the allocation of billions of dollars in transportation resources--to bring about equitable outcomes.

   1. Early Suburbanization

      Rates of urbanization began to explode in the late nineteenth century, driven by the Great Migration, the mechanization of agriculture, and the rapid immigration of low-skilled workers from Europe. (20) While growing cities across the United States were rife with opportunities, they also suffered from significant burdens created by rapid industrialization and dense urbanization, including noise, pollution, and overcrowding. (21)

      As transportation technology like streetcars, regional rail, and the automobile improved, those who could afford to sought housing outside the urban core. (22) Distances that would have taken hours to travel in the past now took minutes. The size of regions--contiguous geographies defined by strong economic interdependencies--expanded in kind. For example, the Los Angeles metropolitan area grew from forty-two square miles in 1900 to over four hundred by 1930. (23)

      While the engines of metropolitan economies largely remained their central cities, suburbanization complicated governance by dispersing populations and power across the landscape. Early in this process, many suburbanizing areas were annexed into the...