Guest post: Settlement in case alleging transportation project discriminates against urban minorities

By Rachel Granneman and Andrew Armstrong

Wisconsin DOT and U.S. DOT recently reached a landmark agreement to settle a lawsuit brought in 2012 by the Black Health Coalition of Wisconsin and the Milwaukee Inner-city Congregations Allied for Hope, challenging the $1.7 billion Zoo Interchange highway reconstruction project. This case may help lead to more balanced and inclusive transportation decisions in the future.

Located on Milwaukee’s west side, the Zoo Interchange is one of the busiest in the state. BHCW and MICAH alleged that the defendants violated the National Environmental Policy Act  and the equivalent Wisconsin state law by failing to adequately analyze the effects of and alternatives to the project, as well as by discriminating against urban minorities by spending hundreds of millions of dollars on a major highway reconstruction without including any public transit elements in the project. The complaint explains that the Milwaukee metropolitan region is highly racially segregated, and that unemployment rates are high among urban minorities, who often don’t have access to personal automobiles and may not have driver’s licenses. Investments in highway expansions in the area cater largely to the needs of white suburban communities, while funding for transit programs—which could provide transportation for urban minorities to jobs and services in neighboring suburbs—has actually been cut. The suit also referenced environmental concerns with the Interchange project, including air quality impacts and potential flooding risks.

Court-supervised mediation led to a settlement agreement this month, in which defendants agreed to spend up to $13.5 million to expand and improve public transit in the area over the next four years. Up to $11.5 million will go toward providing bus transit between Milwaukee and surrounding suburbs, which will both provide transportation for workers and help with traffic congestion. An additional $2 million will fund enhancement services, such as real-time route information.

What is the significance of this case? After all, it ended in a settlement agreement, not an opinion of the court. First of all, the federal district court—in considering the plaintiffs’ request for a preliminary injunction, which requires a determination of whether plaintiffs are likely to succeed on the merits of the case—held that it had virtually already decided that the defendants’ analysis of the effects of the interchange project was insufficient under NEPA. The court specifically held that plaintiffs were likely to succeed on their argument that the defendants had failed to adequately consider the social and economic effects associated with expanding highway capacity while transit capacity decreased.

This case is groundbreaking because of the court’s acceptance of the plaintiffs’ theory that the transportation agencies’ NEPA analysis had to consider the discriminatory effects of systematically and disproportionately investing in highways over public transit. Although the court didn’t technically make a final ruling on the issue, it clearly signaled that had the case not been settled, it would have sided with the plaintiffs on this argument. The court made clear that the project could not just be considered on its own, but needed to be placed in the context of system-wide transportation decisions that had an impact on underserved groups.

The agreement is also notable because it got plaintiffs arguably more than a favorable decision by the court could have. This is because NEPA is a procedural statute—it requires agencies to collect and consider information, but does not require a substantive result. That is, even if defendants were found to have violated NEPA, they might have gone back, more fully considered and disclosed the effects of the project, and then been allowed to proceed with it anyway. Under the settlement agreement, on the other hand, the defendants affirmatively agreed to take substantive action to improve the transit system in the area.

Andrew Armstrong is a Staff Attorney, and Rachel Granneman is an Associate Attorney at the Environmental Law & Policy Center in Chicago.