Though often well intentioned, the onslaught of federal regulations affecting transportation results in substantial increases in planning, construction and maintenance costs. An example is a recent Clinton Administration Executive Order (no. 12898) entitled "Federal Actions To Address Environmental Justice in Minority Populations and Low Income Populations." This was followed by a draft DOT Order implementing the executive order dated December 21, 1994 entitled "DOT Actions To Address Environmental Justice In Minority and Low-Income Populations," and a follow-up letter from Secretary of Transportation Pena of February 15, 1995.48 This order requires all federal agencies or recipients of federal aid to determine whether any rule, program, project or activity that affects human health or the environment would have a "disproportionately high and adverse effect on minority and low income populations."

To comply, agencies must consider 12 listed adverse effects, and any others, including "destruction of man-made resources," "diminution of aesthetic values," "disruption of community values," and "disruption of the availability of public services." An adverse impact will be presumed to be disproportionately high for minority and low-income populations if "it adversely affects a population which is predominantly minority and/or low income;" or "when an adverse impact that will be suffered by such populations is more severe or greater in magnitude than the adverse impact that will be suffered by non-listed populations."

When disproportionate adverse impacts occur and continue to be disproportionately high despite required mitigation strategies to reduce such impacts, the project, rule, activity, etc. may not be carried out unless special conditions are met. These include that "a substantial need based on the overall public interest can be demonstrated;" and alternatives that would have less impact would have other comparable adverse impacts, or "would involve increased costs of extra-ordinary magnitude." In the case of populations protected by title VI of the Civil Rights Act of 1964 there must also be a "compelling governmental interest in proceeding."

This regulation obviously has the potential to force major planning costs, and also has the potential to allow almost any group to stop or delay a project. Secretary Pena's letter of February 15, 1995 also indicates that the rules requirements for open access to such groups also means that agencies must provide training and tools to such groups so that they can be active and meaningful participants in required public meetings held to address the adverse impact determination.

Even though this rule does not yet include even draft definitions, the FHWA has indicated that it will not approve the EIS (environmental impact statement) for the M-84 project MDOT is planning until the environmental justice review is completed. There is some indication that DOT is attempting to push this rule through so that it will not be subject to proposed legislation creating a moratorium on the issuance of new regulations. It is impossible to place a cost on this "environmental justice" regulation, but it is obvious that the rule could cause long delays, and dramatically increase the costs of completing projects.