President Joe Biden has grand visions for infrastructure projects, judging by his $2 trillion American Jobs Plan. Nevertheless, his administration is pumping the brakes on one particular infrastructure project, and it's using the Civil Rights Act to do it.
Last week, Politico reported that the Federal Highway Administration (FHWA) sent a letter to the Texas Department of Transportation (TxDOT) requesting that it pause contract solicitation on its North Houston Highway Improvement Project to give the agency time to evaluate complaints that the project violates Title VI of the Civil Rights Act.
The $7 billion Houston project—funded with a mix of state and federal dollars—would reroute I-45 near the city's downtown, add four managed express lanes to the highway, raise bridges, improve drainage to prevent flooding, and add bike lanes and pedestrian sidewalks at a number of cross streets.
In order to add those express lanes, however, TxDOT is planning to widen the highway by as much as 220 feet in some places. The road's expanded footprint will result in the displacement of about 600 private homes, 486 units of public or low-income housing, 344 businesses, five churches, and two schools, according to a TxDOT report.
That displacement, and the fact that it would be concentrated in largely minority neighborhoods, has provoked criticism from local activists who argue the project doubles down on the discriminatory effects of past highway construction.
"The direct effect of construction of these freeways has been to condemn and destroy Houston's principal Black-owned business district, homes and religious institutions located in what is now the right-of-way of these two highways," wrote Zoe Middleton and Christina Rosales of Texas Housers, an affordable housing group, in a January letter.
Any decision to move forward with the highway project "will pave the way to expand and make worse the harms TxDOT has inflicted on Black Houstonians" and thus violates Title IV of the Civil Rights Act, they write.
Neither that letter nor similar communications from Rep. Sheila Jackson Lee (D–Texas) and Air Alliance, a Houston environmental group, swayed TxDOT. In February, the agency issued a record of decision which finalized the environmental review process and announced the specific form that the project would take.
Normally the environmental review process, Politico notes, would be done by federal bureaucrats. Texas, however, is an "assignment state" which means its own officials are empowered to perform the environmental review required by the National Environmental Policy Act (NEPA). Other states that have this power include Alaska, California, Florida, Ohio, and Utah.
NEPA requires federal agencies to assess the impact of their actions on the environment—whether that's funding a new road or issuing a permit for a new coal mine—by preparing lengthy environmental reports.
The law is famous for raising the cost and completion time of infrastructure projects by allowing project critics to sue over environmental reviews they think aren't thorough enough. To avoid litigation, in turn, bureaucrats have taken to writing longer and longer environmental reviews that cover every conceivable objection project opponents might have.
"Today the average [Environmental Impact Statement] runs more than 600 pages, plus appendices that typically exceed 1,000 pages. The average EIS now takes 4.5 years to complete; between 2010 and 2017, four such statements were completed after delays of 17 years or more," wrote the Niskanen Center's Samuel Hammond and Brink Lindsey in 2020 report. "And remember, no ground can be broken on a project until the EIS has made it through the legal gauntlet."
Texas officials report that they've been able to shave a year off the average "environmental assessment"—a less onerous form of NEPA review than an Environmental Impact Statement—by bypassing the FHWA's process and doing NEPA reviews themselves, according to a 2018 report from the Government Accountability Office.
But being an assignment state isn't a silver bullet for getting infrastructure projects built. Despite TxDOT spending close to 10 years preparing the environmental impact statement for its Houston project, it's managed to get hit with a NEPA lawsuit from Harris County (which contains Houston) in March.
While it's not immunized from all environmental lawsuits, Texas' status as an assignment state does deprive federal bureaucrats of the ability to slow down a project at their own initiative using NEPA. Enter FHWA's novel use of the Civil Rights Act to hit pause on Houston's highway project.
This raises an interesting bit of tension between the president's goals of going on a once-in-a-generation building spree and furthering "equity" with transportation spending.
"The Biden administration wants to build a lot of infrastructure," including lots of rail and transit, says Baruch Feigenbaum, senior managing director of transportation policy at the nonprofit Reason Foundation, which publishes this website. "Those projects can have the same sorts of challenges in terms of needing to acquire land, going through sensitive areas. The administration has to be careful here; it opens itself to being hypocritical in terms of the mode. Two, they could derail projects they want."
Biden's recently unveiled American Jobs Plan allocates roughly $600 billion to transportation spending, including $115 billion for roads and bridges, $85 billion for transit, and another $80 billion for Amtrak.
Houston's highway project is generally a good one, says Feigenbaum. The fast-growing, auto-oriented city needs more space to accommodate an increasing number of drivers.
Doing this with managed express lanes, which will toll drivers in order to offer guaranteed travel times, will lessen the "induced demand" effect—whereby extra highway space merely induces more driving, leaving congestion unchanged—by requiring drivers to pay a price for speedier travel, he says.
Activists' complaints about the displacement of homes and businesses aren't without merit, Feigenbaum says, but he also adds that they haven't proposed real solutions.
TxDOT says much the same thing in its final Environmental Impact Statement. "While minority and low-income individuals and community facilities in the project area would be adversely impacted by the proposed project, no Reasonable Alternatives would avoid adverse impacts," it reads.
Michael Hendrix, director of state and local policy at the Manhattan Institute, is less enthusiastic about the prospects of Houston's highway widening.
"The first step should be how can you efficiently use the highway you already have. If there is a way to convert existing lanes to express lanes should be the first step. What [TxDOT is] deciding to do is even more radical than that," he says. "They're saying we're going to add express lanes and not ration anything else that we have."
Having completed the environmental review process, Texas can now start trying to acquire the land it'll need. That could see the agency use a mix of eminent domain and voluntary purchases. It's pledged $27 million for affordable housing initiatives in neighborhoods affected by the project, in addition to whatever it will have to spend on land acquisition, owner compensation, and relocation costs.
Hendrix says that facilitating the movement of cars needs to be balanced against the community and health impacts of expanding highway capacity in urban areas. Nevertheless, he expresses concern that the Biden administration's use of the Civil Rights Act to slow down Houston's highway widening creates a dangerous precedent that could lead to more NIMBYism, whereby people reflexively oppose any development near their communities.
"This highway widening already went through the environmental review process and got the signoff. As we see in every infrastructure project across America, public or private, environmental review can and often is weaponized to stop new development," he says. "What I fear is that we are opening a new front where civil rights law is being used with the same logic as environmental NIMBYism."
Just today, CityLab published a rundown of the numerous activists firing off reams of letters to the U.S. Department of Transportation asking that they look into the civil rights implications of infrastructure projects in their own back yards.
TxDOT told Politico that it is currently reviewing FHWA's request, and is still figuring out what it will mean for their ability to ink contracts and move forward with their Houston project.