How Does Environmental Justice Impact the Asphalt Industry in Texas?

BY GARY NICHOLLS, PE, Senior Vice President, Westward Environmental, Inc.

Reprint from Texas Asphalt Magazine, Fall 2022

Official Publication of the Texas Asphalt Pavement Association

In past articles and blogs, we have discussed the Infrastructure and Investment Jobs Act (IIJA) that will fund enhancements and rebuilding of roads, highways, and bridges throughout the nation so that people and commerce can travel safely and smoothly. Signed by President Biden in November 2021, the bill promises an increased investment of $110 billion for roads and bridges, bringing the total dedicated spending to $360 billion over the next five years.

In our blog about The Inflation Reduction Act (IRA), we gave an overview of the $370 billion bill that includes tax breaks for renewable energy investments, and tax credits for the purchase of electric vehicles. State governments will receive funding and allocate moneys to projects that qualify. Moreover, part of the IRA includes tax incentives and grant opportunities that will come directly from the federal government.

This article examines how Environmental Justice (EJ) is addressed through the Federal Government and how it affects the Asphalt Industry in Texas. The mission of achieving EJ is not a new one. Presidential Executive Order 12898 (signed in 1994) directed every federal agency to address the effects of their programs and policies on minority and low-income populations. The directive was that all federal agencies were to consider their impacts, both positive and negative, and to ensure that the negative impacts were not disproportionately born by low-income or minority communities.

The impact of the IIJA, in terms of EJ, is mostly felt through programs related to energy cost and reliability, broadband access, water, bus and rail improvements, superfund site cleanups, and lead pipe replacement; many of which directly impact disadvantaged communities. The effect of EJ related to highways and bridges predates the IIJA. In fact, in 1997 the U.S. Department of Transportation (USDOT) issued an Order to Address Environmental Justice in Minority Populations and Low-income Populations in response to Executive Order 12898. Since that time, the USDOT and its agencies have provided guidance to state DOTs and MPOs regarding ways to analyze and quantify the impacts of their projects on communities and how to mitigate potential adverse impacts.

The impact of EJ can also pertain to the location of typical highway construction facilities, such as concrete batch plants, crushers, and asphalt plants. The environmental impacts of these facilities are regulated by the EPA, and regulation is often delegated to a State Commission, such as the Texas Commission on Environmental Quality (TCEQ). In recent years the location of these types of facilities is often the subject of EJ discussions. As a result of Executive Order 12898, the EPA developed EJScreen. According to EPAs website, "EJScreen is an environmental justice mapping and screening tool that provides EPA with a nationally consistent dataset and approach for combining environmental and demographic indicators." In other words, users of EJScreen can input a geographical region (such as a potential location for an asphalt plant) and the program provides publicly available demographic and environmental information for that area and shows how the selected area compares to other areas of the state, EPA region, or the nation in terms of its environmental, income, and minority status.

U.S. Department of Transportation EJ Principles and Objectives Overview

Of the IIJA’s $1.2 trillion funding, $110 billion of ‘new’ spending will be distributed through the U.S .Department of Transportation for highways and bridges. A part of USDOT’s Strategic Plan for FY 2022-2026 includes EJ efforts to "Support a more just and equitable transportation system by investing in historically underserved communities to connect them with jobs, resources, and opportunities, and empowering them to build generational wealth." 

The U.S. Department of Transportation EJ Principles:

·       To ensure the full and fair participation by all potentially affected communities in the transportation decision-making process.

·       To avoid, minimize, or mitigate disproportionately high and adverse human health and environmental effects, including social and economic effects, on minority populations and low-income populations; and

·       To prevent the denial of, reduction in, or significant delay in the receipt of benefits by minority and low-income populations. 

The USDOT principles apply to all policies, programs and other activities undertaken, funded, or approved by the Federal Highways Administration (FHWA). Therefore, the FHWA implements the EJ principles and objectives in their work with state DOTs and MPOs through their policy, planning and design decisions.

The U.S. Department of Transportation Equity Objectives:

·       Expand affordable access to transportation jobs and business opportunities by removing barriers for individuals, businesses, and communities.

·       Reduce the effects of structural obstacles to building wealth.

·       Empower communities through innovative public engagement with diverse stakeholders and thought leaders to foster exchange and ownership.

·       Ensure that equity considerations for disadvantaged and underserved communities are integrated into the planning, development, and implementation of all transportation investments.

The U.S. Department of Transportation Equity Objective Performance Indicators:

·       By 2025, increase by 5% the number of USDOT discretionary grant applications from disadvantaged communities who have never applied for USDOT funding before.

·       Increase USDOT direct contract dollars to small, disadvantaged businesses from 18.2% in FY 2021 to 22% by FY 2026.

·       All 50 DOTs and top 100 MPOs adopt a quantitative Equity Screening component to their STIP (Statewide Transportation Improvement Program) development processes by 2030.

·       Reduce national transportation cost burden by 5%, including transportation travel cost as a percent of income by 2030.

Texas Department of Transportation Principles & Policies:

·        TxDOTs principles regarding EJ align with those of USDOT as noted above. According to the TxDOT Environmental Handbook, dated December 2020, "TxDOT receives federal funding from the FHWA; therefore, all TxDOT projects must consider the potential for impacts to community resources as well as potential EJ and Title VI issues."

·        TxDOT has included EJ considerations in its policy and programs for many years using Community Impacts Assessments (CIA) for projects that have the potential to result in temporary or permanent impacts to the community. A CIA is a screening tool used to ensure that low-income and minority communities are afforded the opportunity to have transportation that creates access to education, employment, and health care facilities and that does not disproportionately burden the community in terms of traffic, pollution, noise, relocation, etc. The CIA process also requires significant public involvement, including stakeholder groups and the TxDOT Public Involvement Section, in all phases of project planning, development, and construction.

Environmental Justice has been a consideration in highway planning, design, and construction processes in Texas for many years using Community Impact Assessments. EJ is also a consideration when locating construction-related facilities in communities. The EPA’s EJScreen assists professionals in comparing community areas with regards to their environmental, income and minority status. The use of tools such as CIA and EJScreen is expected to increase as congested highways and roadways in heavily populated areas require more maintenance, potential widening, and more roads need to be built to facilitate safe travel throughout the country.