This article is the third in the series “Equity and Infrastructure: How Infrastructure Influences Social Equity,” which is being published by Civil Engineering magazine and the Civil Engineering Source over the next several months.

A major interstate expansion project is on hold in Texas after the Federal Highway Administration raised concerns that it could violate Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, religion, sex, or national origin. The FHWA’s concerns come as President Joe Biden’s administration pushes to reemphasize racial equity and environmental justice as part of its infrastructure package — and it could have lasting implications for national infrastructure construction moving forward.

In a letter dated March 8, the FHWA asked the Texas Department of Transportation to pause its North Houston Highway Improvement Project, which would widen, reroute, and realign Interstate 45 through downtown Houston. The FHWA noted that it was acting in response to three complaints that it had received that raised concerns about the project under Title VI of the Civil Rights Act as well as for environmental reasons.

The equity concerns stem from TxDOT’s projections that the project would displace more than 1,000 homes, two schools, five places of worship, and 344 businesses that employ roughly 24,870 people in a low-income community with residents who are predominantly people of color. The complaints came from Rep. Sheila Jackson Lee, D-Texas; the nonprofit environmental advocacy organization Air Alliance Houston; and a community organization called Texas Housers.

“Although TxDOT is responsible for the NEPA (National Environmental Policy Act) process through a memorandum of agreement with FHWA, FHWA retains responsibility for evaluating and processing complaints against federal-aid recipients under Title VI,” the FHWA letter states. “To allow FHWA time to evaluate the serious Title VI concerns raised in the letters referred to above, we request that TxDOT pause before initiating further contract solicitation efforts for the project, including issuance of any requests for proposals, until FHWA has completed its review and determined whether any further actions may be necessary to address those concerns.”

Officials with the FHWA and TxDOT declined interview requests for this article.

Years in the making

Work on the I-45 project stretches back to 2002, when TxDOT and other public entities launched a series of planning studies to identify and address transportation needs in the area. They concluded that I-45 requires significant expansion and redesign to meet increasing traffic demands, improve mobility, expand transit and carpool opportunities, eliminate flooding, and enhance safety in the growing city.

“This (would be) the first round of major highway expansions since the infrastructure was built in Houston during the (President Dwight D.) Eisenhower era,” explains Brian K. Carroll, managing partner at Sanderford & Carroll PC and a former civil engineer. Carroll is an experienced construction lawyer who is knowledgeable about TxDOT projects and is unaffiliated with the paused Houston project. “This is an exceptionally critical expansion that’s badly needed to bring this corridor up to current standards,” he says. “Plus, this is a major hurricane evacuation route. We want to get this project built as quickly as we can for the safety of everyone.”

After identifying the need to expand I-45, TxDOT spent years developing a series of alternatives for the project. The department presented these alternatives to the public and other stakeholders five times between 2011 and 2016 before proposing a recommended alternative in 2017. Based on public comments gathered between May 2017 and June 2018, the department revised its recommended alternative to the current $7 billion proposal and issued its final environmental impact statement for the project in August 2020.

This protracted process is typical for TxDOT, says Carroll, who represents highway contractors and assists them in evaluating, preparing, and litigating claims arising from TxDOT projects.

“Everything with TxDOT takes a long time,” Carroll says. “It’s a very methodical process of design that includes getting schematic design contracts approved, combined with long-range traffic studies, as well as partnering with local municipal planning districts to project what the traffic volume will be in 10, 20, 50 years. Once that happens, they have to go through the draft environmental impact statement and the final environmental impact statement. After clearing those hurdles, they have to obtain federal and state money to build the project, and from there, they have to let it for construction. It’s a very slow-moving process. It can take years and years, even decades, to get a project from concept to construction.”

Voices of opposition

However, throughout TxDOT’s environmental review process and since the department released its final environmental impact statement for the project nearly a year ago, many area residents and other stakeholders have objected to the proposal.

Many of the complainants have cited social justice issues and environmental concerns because of the sheer number of homes and businesses that the project would displace. Among those voicing opposition to the plan is the Make I-45 Better Coalition, an alliance of historic preservation and environmental groups.

Houston Mayor Sylvester Turner also opposes the project, writing in a December 8, 2020, letter to TxDOT that while “this project can be transformational and can achieve the city’s and TxDOT’s objectives,” the project “has shortcomings that must be addressed and impacts that must be further mitigated to maintain my support.”

David Fields, Houston’s chief transportation planner, agrees and says that the project should be reconfigured with the community in mind.

“Part of the project goes through historically low-income and minority neighborhoods,” Fields says. “The interstate was built that way (in) the ’60s, and it’s had a significant impact on those neighborhoods, both with flooding and cutting them off from economic opportunities. This project, as it stands now, will only make things worse for the people who live there. We don’t believe that widening a freeway right next to where these people are living is the best approach. A project that has as narrow of a footprint as possible is a high priority for us.”

Community members have also spoken in opposition to the project. A grassroots organization called Stop TxDOT I-45 has held protests and gathered stories from area residents and business owners whom the project would negatively impact. (Under eminent domain, TxDOT would have to pay property owners the appraised value for any property it wants to acquire.)

Among the residents that Stop TxDOT I-45 has spoken with are Elda Reyes, whose family has paid off the mortgage on their modest house and can’t fathom taking out a new loan to relocate, and Sean Jefferson, who paid $64,000 for his house and doesn’t have the money to purchase a new place, noting that the condos on the other side of the interstate sell for more than $300,000. “TxDOT hasn’t (done) anything but come and do a survey and send a letter in the mail saying … ‘We’re going to be taking this land for a freeway project,’” Jefferson said in one of the organization’s videos. “They always have major plans, but they don’t even seek the community feedback.”

Time to investigate

Despite vocal public opposition to its proposal, TxDOT issued a record of decision to advance the project in February 2021. The FHWA’s March review under the Civil Rights Act is what ultimately brought the project to a halt.

“We have received the letter from FHWA and are reviewing the FHWA requests,” said Bob Kaufman, the TxDOT director of communications and customer service, in a statement. “It's unfortunate there is an expanded delay on this project, but TxDOT remains fully committed to working with FHWA and local officials on an appropriate path forward. We know that many in the community are anxious to see this project advance. This FHWA action indefinitely suspends key steps for this project.”

Just days after the FHWA issued its letter to TxDOT, Harris County filed a lawsuit to compel TxDOT to revise its project plans. (While Harris County geographically includes Houston, the city is not part of the lawsuit.) “For too long, transportation policy in our region has been stuck in the ’50s,” Harris County Judge Lina Hidalgo said in a press conference on the lawsuit.

“For a generation, we’ve gone on just building more lanes, putting down more concrete, thinking that somehow, magically, that’s going to reduce traffic and that’s going to make us more competitive,” Hidalgo said. “All the while, what we’ve done is created more flooding problems, exacerbated instead of solving traffic, and built bigger and wider highways while turning into one of the last urban areas worldwide without a comprehensive public transportation system. We cannot continue to support transportation policy that prioritizes cars over people.”

According to a June letter that FHWA division administrator Achille Alonzi sent to TxDOT executive director Marc Williams, TxDOT has agreed to meet federal environmental requirements and cooperate with the FHWA’s Title VI investigations.

“With respect to the scope of the ‘pause,’ the FHWA requests that the pause apply to right-of-way acquisition, including solicitations, negotiations, and eminent domain, and final design activities,” the letter states. “FHWA will similarly pause any of its activities and approvals, including but not limited to sign-off on the submitted Interchange Justification Report. There are numerous environmental and civil rights issues involved, and FHWA believes that no further actions (should) be taken on this project that might impact our Title VI investigation and any proposed remedies should the agency find that a violation has occurred.”

Future implications

Although it’s too soon to know how the FHWA’s actions will ultimately impact the project, Carroll is concerned about the precedent it could set for future projects, especially in Texas, which is a NEPA assignment state, meaning it has the authority to conduct its own environmental analysis without FHWA project-specific review and approval.

“For FHWA to step in and tell TxDOT that you’re not doing your job right is really concerning. That’s another level of federal oversight that’s going to slow down the construction of critical infrastructure, particularly in minority areas where they don’t have sufficient infrastructure to help alleviate traffic concerns and make things better,” Carroll says, adding that “it’s unfortunate that people are displaced, but that’s a function of most infrastructure improvements. If the standard is going to be that we can’t ever change the footprint of the infrastructure, it’s going to be extraordinarily expensive to build future infrastructure.”

Should the FHWA find that the project is in violation of Title VI of the Civil Rights Act, departments of transportation and infrastructure engineering and construction teams would most certainly need to more closely consider potential civil rights issues going forward. And the FHWA would need to develop guidelines for civil rights analysis, similar to the NEPA guidelines it has for environmental analysis, says Michael C. Loulakis, FDBIA, president of Capital Project Strategies LLC and a co-author of Civil Engineering’s long-running department The Law.

“If the ultimate test for a project’s viability will now involve determining whether civil rights are being violated because of impacts on neighborhoods, then how does a transportation agency pass the test?” Loulakis wonders. “I’m not aware of any standards right now that consider civil rights in this way. Depending on what FHWA does in this case, those standards will be necessary so that everyone knows where the bar is set.”

For now, it’s a matter of waiting to see what happens with the Houston project. “I could see the project being pulled from construction and going back to redesign,” Carroll says. “If that happens, it could be three to four years before we’re back in construction, which is probably a bad thing for Houston.” Of course, some people, like Hidalgo, disagree. “The message from the Biden administration to TxDOT is very clear: You can’t bulldoze your way to a massive infrastructure project without community input, without considering smarter transportation options,” she said in a June 23 Houston Public Media report. “And you can’t bulldoze your way through the Civil Rights Act.”

Read all the pieces in the series “Equity and Infrastructure: How Infrastructure Influences Social Equity,” and "What is the best way to integrate community needs and civil rights into an infrastructure project?" from the Civil Engineering Source.