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Federal civil rights review could imperil BART airport connector project

on November 19, 2009

The Federal Transit Administration’s Office of Civil Rights will review the social equity aspects of BART’s current projects within the next several months, a process that could lead to further delays or even kill a plan to build an elevated rail connector to the Oakland airport.

The review was publicized Tuesday by a San Francisco-based legal advocacy group Public Advocates, which filed a complaint with the Federal government in September arguing that BART’s current airport connector plan violates nondiscrimination rules in the Civil Rights Act of 1964.

If the Federal Transit Administration (FTA) finds BART’s connector project is in violation of Title VI of the Civil Rights Act, the project could be in jeopardy, as much of its financing comes from the federal government. The BART board of directors is currently reviewing construction bids; budget estimates have swelled to $550 million from an initial projection of $132 million.

The transit agency has gathered nearly $250 million from various federal sources, including $70 million in stimulus money and $150 million in loans from the Federal Transportation Infrastructure Finance and Innovation Act. A potential disruption of federal funding could delay the project further, or potentially cause its collapse.

According to the FTA documents available online, if a program receiving federal assistance is found to have discriminatory effects on the grounds of race, color, or nation origin, the federal agency providing the assistance must terminate the funding or “refer the matter to the Department of Justice for appropriate legal action.”

Public Advocates filed its complaint with the FTA on behalf of Bay Area transit policy groups TransForm and Urban Habitat and the community advocacy group Genesis. The complaint argues BART officials have failed to analyze the negative impact of increased fares and reduced services on minority and low-income populations in East Oakland as a result of the Oakland Airport Connector.

BART chief spokesman Linton Johnson said the agency would not comment on the specific complaint while it was still pending, but said BART’s officials followed Title VI regulations. “We have always followed the federal guidelines when we put together our Environmental Impact Reports,” Johnson said, “and we plan to follow federal guidelines moving forward.”

Public Advocates also argues that BART failed to give adequate consideration to an alternative dedicated bus line, known as RapidBART. According to Public Advocates, this alternative would be significantly cheaper than the rail proposal and involve a smaller disruption along the heavily industrial and commercial Hegenberger Road corridor. BART’s original plan included two stops along the rail route, which proponents argued would have provided service for local residents and promoted commercial development in the lower-income neighborhood. Recent versions of the project do not include these stops.

John Knox White, TransForm’s Program Director, noted that in the wake of service cutbacks on area bus lines, the ballooning public costs of the connector should give Bay Area transit planners pause. “BART has doubled the amount of public funding for this project,” he said. “We feel the RapidBART provides equal or similar service but is a far more cost-effective option.”

The groups also charge that BART applied for federal money to finish the connector using outdated environmental impact studies from 2002 and 2007, and did not to take into account recent changes to the connector project, including an increased fare from $2 to $6 and the elimination of two intermediate stops along the proposed rail line connecting the Coliseum station with Oakland airport.

Guillermo Mayer, a staff attorney at Public Advocates, said that for BART to study the costs and benefits of a particular project, alternative plans must be adequately considered.  “That is a requirement of the FTA,” Mayer said. “Our specific complaint states that BART failed to provide that analysis.”

Johnson characterized the disputed $6 fare as a “worst case scenario” used for financial modeling, and said the fare had not been set. “We believe the fare will be closer to the current airBART rates,” he said. A one-way ticket on the airBART bus between the Coliseum and the airport is currently $3.

There was some disagreement between the groups as to the significance of the FTA’s review. While Public Advocates highlighted the Title VI review as validation of their concerns, Johnson said the FTA review had been scheduled since March 2008, and was unrelated to the challenges from Public Advocates. An FTA spokesman confirmed that a civil rights audit had been previously scheduled. A letter sent by the FTA’s Office of Civil Rights to Public Advocates said the decision to conduct the review was based “in part” on the group’s complaint.

Derrin Jourdan, the Civil Rights Officer with the FTA’s San Francisco office, said he was barred by agency rules from discussing this specific complaint, but he did clarify in an email statement that regular program reviews were part of the FTA’s effort to “ensure continuing adherence to federal regulations and program policies.”

“These reviews should not be interpreted as formal audits,” he wrote.

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