PUTTING THE PUBLIC IN PUBLIC TRANSIT: A PROPOSED AMENDMENT TO THE CITIZEN PARTICIPATION REGULATIONS IMPLEMENTING THE NATIONAL ENVIRONMENTAL POLICY ACT.

AuthorJohnson, Sofia

Introduction 256 I. Transit Deserts and the Environmental Review Necessary to Fix Them 259 A. How We Got Here: Transit Deserts in the United States 260 B. How We'll Get There: Environmental Review and Public Participation Requirements 265 C. Where Do We Go Next? Critiques of NEPA 268 and Tensions in Calls for Reform 268 II. Between a Rock and a Hard Place: NEPA's Public Participation Problems 273 A. Too Much Participation: How NEPA's Public Participation Requirements Block Transit Development 274 1. The Extended Controversy Over the Los Angeles Purple Line Extension 274 2. The All-Encompassing Design of NEPA's Public Comment Regulations 275 3. The Exclusionary Effects of Public Participation 276 4. Not Underneath My Backyard: How Anti-Transit Sentiments Dominate Public Participation 279 5. Stuck in Traffic: When Public Participation Becomes Predatory Litigation 281 B. Transit Deserts Demonstrate NEPA's Necessity for Public input 282 1. Urban Renewal, Highway Construction, and the Devastating Consequences of Ignoring Locally Effected Communities 283 2. Public Participation' s Positive Potential 284 3. The Right Connections: The Lessons of LaGuardia's AirTrain 285 III. Have Your Transit and Use It Too: Proposed Amendments to NEPA's Public Participation Regulations 286 A. The Benefits of Expanded Scoping and Limited Comment 288 1. Expanded Scoping and Limited Comment Better Aligns with NEPA's Statutory Requirements 288 2. Expanded Scoping and Limited Comment Facilitates Better Public Participation 289 3. Expanded Scoping and Limited Comment Would Save Agency Resources and Facilitate More Transit Development 292 B. Recommendations for Streamlining Public Comment 294 C. Recommendations for More Robust Scoping 295 1. Environmental Justice Directives 295 2. Ongoing Citizens Advisory Boards 297 3. Community Benefits Agreements 298 Conclusion 300 INTRODUCTION

It was a September evening in Beverly Hills, California, and the Roxbury Park Community Center was filled with people. (1) So full, in fact, that the Center had to accommodate an overflow room. (2) Cameras rolled so people outside the Center could tune in to the proceedings. (3) At 6:15 PM, Jody Litvak, the presider, had to remind people in the room to quiet down for the recording. (4) The public hearing about the proposed subway extension for the Los Angeles Metro ("Metro") was about to begin. (5)

Ms. Litvak first reminded the attendees of the meeting's structure: participants were given two minutes to speak about the proposed subway extension's newly-released Draft Environmental Impact Statement. (6) To comply with the National Environmental Policy Act (NEPA), the Los Angeles County Metropolitan Transportation Authority (LACMTA) had to issue such a statement and hear the public's reaction. (7) Any comments the public wanted to get on the record were welcome. (8) The Metro would take these comments into consideration as it prepared its final environmental report and subsequent decision about the subway proposal. (9)

One by one, residents stood up and voiced their opposition to the subway line extension. (10) One commenter called the Draft Environmental Impact Statement "slanted," saying that the Metro "lost all [its] credibility." (11) Another pleaded with the Metro, "Please don't do this. Be respectful. Be good. Do good." (12) When one commenter's time ran up, another commenter interjected, "[t]his is ridiculous. You don't want to listen." (13) One resident simply said, "[t]his project is a farce. That's where it belongs," indicating something the transcript did not catch. (14) LACMTA provided a detailed written response to each comment in its Final Environmental Impact Statement, (15) but did not change its subway route proposal in response. (16) Bitter lawsuits followed, lasting years and costing millions of dollars. (17)

Local opposition to public transit proposals is commonplace. (18) Tense public hearings on such proposals are also frequent. These hearings, however, are a fixture of NEPA.

The initial objective of NEPA was to require agencies to consider local environmental concerns, and to think twice before implementing federally funded projects. (19) The law was therefore designed to encourage environmentally responsible decision making. (20) Over 50 years later, however, NEPA has swelled into an administrative behemoth. (21) Compliance with the statute adds years of delay and piles of paperwork to government initiatives. (22) Meanwhile, many consider NEPA's rules that require public input to be performative, condescending, and a barrier to progress. (23)

Proposals to reform NEPA are frequent. (24) The last two presidential administrations promulgated rules to try to fix the statute. (25) Reform goals, however, often conflict with one another. Amendments adopt a give-and-take stance; improving one aspect of NEPA, particularly its public input regulations, entrenches the statute's flaws elsewhere.

The problem of transit deserts highlights the failings of these failed reform efforts. Transit deserts are communities that lack accessible transit options and yet, paradoxically, depend heavily on mass transit to get from place to place. (26) Transit deserts are pervasive throughout the United States, and they have profound detrimental effects on local economies, public health, and upward mobility. (27) The best way to alleviate transit deserts is to quickly build more transit infrastructure, specifically to benefit the most disenfranchised and vulnerable communities. (28)

Any infrastructure project (including those in transit deserts) must first go through NEPA's environmental review processes. (29) Currently, NEPA's public participation regulations obstruct the swift development that transit deserts desperately need. A procedural change to these regulations, however, can shrink this obstacle, making the environmental review process both more efficient and equitable. This Note proposes amending the regulations governing NEPA's public participation policy to diminish the number of transit deserts. Specifically, this Note proposes changes that will allow more opportunities for public input early in environmental review and restrict the participation channels towards the end, after substantial work has already been completed. Under these rules, public input will be both more meaningful and more streamlined, leading to more transit options in areas where they are most needed.

Part I of this Note explores the phenomenon of transit deserts, the environmental review regulations that govern infrastructure projects, and the two junctures at which these regulations require public participation. It also discusses the critiques of these environmental review regulations and the tension among those critiques. Part II focuses on the public participation aspects of NEPA's implementation rules, showcasing both the drawbacks of too much public input and the perils of no input at all. Part III proposes a change to these participation rules that threads the needle between efficiency and equity. Part III also suggests strategies to implement this amendment, with an eye towards environmental justice.

  1. TRANSIT DESERTS AND THE ENVIRONMENTAL REVIEW NECESSARY TO FIX THEM

    This Part pairs two intractable problems: a spatial phenomenon common to American cities with significant social justice implications, and a landmark law that seemingly creates as many problems as it aims to solve. Section LA provides background on transit deserts, the policies that created them, and the legal roadblocks to solving them. Section I.B explores one of these roadblocks: NEPA's public participation requirements. Section I.C discusses critiques of NEPA, and recent efforts to amend the statute. This Section also discusses the shortcomings of these reform proposals in the context of transit deserts.

    1. How We Got Here: Transit Deserts in the United States

      The United States is no stranger to substandard public transit. (30) A 1999 survey from the Department of Commerce found that over half of American families have no public transit options nearby. (31) The percentage of households with satisfactory public transit options is even smaller, a meager 28.8%. (32) Yet poor transit numbers were not always a foregone conclusion. In the beginning of the twentieth century, most American cities had public transit systems. (33) American city-dwellers in the 1920s enjoyed access to 17,000 miles of streetcar routes nationwide. (34)

      As cars became more popular, this heyday quickly faded away. Governments at the state and federal level began subsidizing maintenance costs for roads, but not streetcar services. (35) Streetcars became dependent on fare prices to operate; when city contracts limited fares to five cents per ride, streetcar companies struggled to stay in business. (36) By 1919, a third of American streetcar companies had gone bankrupt. (37) Americans began flocking to the automobile as their primary mode of transport, a trend that never reversed. (38) Transit systems across the country fell into disrepair. (39) The results of these policies are still felt today: a 2018 study of 52 major American cities found transit deserts in each city observed. (40)

      The term "transit desert" comes from urban planning scholars Junfeng Jiao and Maxwell Dillivan. (41) A transit desert is an area with a significant gap between people's need for transit and the available transit options. (42) People who depend on public transit, according to Jiao and Dillivan, constitute "a significant portion of mass transit riders." (43)

      While limited transit options contribute to transit deserts, (44) scarcity does not tell the whole story. (45) Transit deserts occur when people who have no choice but to take public transit lack options for doing so. (46) Generally, people who depend on public transit are older, poorer, and more likely to be disabled. (47) Residents of transit deserts, therefore, have fewer resources and are more...

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