Two years ago, federal transportation officials invoked a 1960s law in response to a 1960s-style highway project.
In April 2021, the Federal Highway Administration paused the expansion of I-45 in Houston using Title VI of the 1964 Civil Rights Act, which prohibits racial discrimination in projects that receive federal funding. The $9.7 billion project would pave over more than 1,000 homes—nearly half of which are public or low-income housing—344 businesses, 5 houses of worship, and 2 schools, mostly in low-income, majority-minority neighborhoods still suffering the consequences from previous rounds of highway construction.
The plan, led by the Texas Department of Transportation, would see portions of I-45 enlarged from 13 to 18 lanes, making the freeway about 1.5 football fields wide.
Local residents, advocates, and political leaders were optimistic that the investigation would yield substantial changes. “Our hope with this Title VI complaint was that we could end up with a project that actually addresses mobility, that prioritizes racial and environmental injustice, reduces vehicle miles traveled, improves safety, and reduces air pollution,” said Ally Smither, an organizer with the group Stop TxDOT I-45.
The Title VI investigation in Houston was the most prominent example of what appeared to be a major highway policy pivot in the early days of the Biden administration. The Infrastructure Investment and Jobs Act, signed in November 2021, was the first piece of legislation to acknowledge the disproportionate harm that highway construction has had on communities of color. Secretary of Transportation Pete Buttigieg even copped to the existence of induced demand, the well-proven notion that adding lanes to a highway actually increases traffic over the long term.
The administration was poised to act on these principles, not only through the Title VI investigation in Houston but also by establishing policy guidelines to limit highway expansions nationwide and launching a program for freeway removals.
But over the past few months, some of these high-profile efforts have fizzled. The Biden administration has shifted back into the center lane, in pursuit of a highway policy that deviates from the status quo only in small ways. Freeway-fighting activists, meanwhile, are stuck in the median—gratified that public opinion is moving in their direction but frustrated that leaders still aren’t willing, or able, to do much about it.
“The general public really knows right now that expanding highways doesn’t work as a solution for traffic congestion,” said Ben Crowther, advocacy manager for America Walks and a leader in the freeway-fighters movement. “The freeway industrial complex, much like the military industrial complex, now perpetuates itself because so many interests are in on the dollars that are available. And I think that’s really what’s driving our policy today, not a desire on the public’s part to have more highways.”
“Frankly Insane”
Even before the Title VI investigation, TxDOT’s I-45 expansion was politically unpopular. Local opposition to the project led Houston Mayor Sylvester Turner to launch a local community engagement and analysis process in 2019. That process yielded a new plan for I-45 with at least 90% less displacement and the inclusion of a bus rapid transit line.
But TxDOT ignored the plan endorsed by locals and moved forward with its original designs. Houston and Harris County leaders continued to push back, often pitting themselves against suburban representatives who supported the expansion. Concurrent with the launch of the Title VI investigation, Judge Lina Hidalgo, the highest-ranking official in Harris County, filed an environmental lawsuit against the project.
Gabe Cazares, executive director of the transportation advocacy group LINK Houston, thought the Title VI investigation would give the Biden administration a chance to “put some muscle behind the rhetoric” it had been employing around highways. “We really saw this as an opportunity for the administration to stand its ground and tell state departments of transportation, ‘We’re not going to allow you to continue repeating the mistakes of the past.’’’
Activists hoped the investigation might force TxDOT to redo the project’s environmental impact statement, which, they say, contained “frankly insane” predictions for congestion relief that totally ignored induced demand. Other outcomes from the investigation could have included a requirement to study the community’s preferred alternative or significantly reduce the project’s displacement impacts. But none of those things happened.
In March of this year, the Federal Highway Administration (FHWA) and TxDOT reached an agreement allowing the I-45 project to go forward more or less with its original design. As part of the agreement, TxDOT will look for “reasonable opportunities” to limit the freeway’s footprint, though it has no requirement to reduce displacement, and it upped its contribution to affordable housing by $3 million. The agency also committed to building four freeway caps, placing the freeway below ground in certain sections, but won’t fund the development of anything on top of them. TxDOT did not respond to a request for comment.
“We were really disappointed” by the agreement, Smither said. “It doesn’t address the underlying civil rights complaints. There’s a lot of talk of mitigation or monitoring, but I say that harm monitored is still harm done.”
“Fix-It-Never”
The milquetoast result of the Title VI investigation may have been connected to larger events in Washington, D.C. The Biden administration would have had greater leverage to reshape the I-45 project had one of its signature transportation policies been allowed to stand.
In December 2021, the FHWA, a division of the Department of Transportation, sent a memo to states colloquially known as “fix-it-first.” The nonbinding guidelines called on states to use increased highway funding from the infrastructure bill to focus on fixing existing highways, rather than expanding them or building new ones. A key priority for the federal government, under the new guidelines, would be ensuring that highways are safe for pedestrians and cyclists. The document reminded officials that highway funds can also be used for transit projects. And the feds vowed to lean on the National Environmental Policy Act to closely scrutinize projects that cause displacement, promote sprawl, or induce further demand for car travel.
The document was quietly revolutionary, pushing for changes that transportation activists tried and failed to put into the infrastructure bill. “Fix-it-first” could have made reducing emissions, improving safety, and promoting non-car forms of transportation the overarching principles of federal transportation policy. Despite the fact that the guidelines were nonbinding, Republican leaders in Congress said the memo went beyond the FHWA’s administrative powers. For example, West Virginia Senator Shelley Moore Capito called for a Government Accountability Office investigation, which determined that FHWA did, in fact, overstep its authority. In response, the FHWA sent out a new memo earlier this year that walked back its previous statements and affirmed states’ rights to spend highway dollars how they please.
“I think that the administration—in order to err on the side of caution because of what transpired with the memo—hesitated to demand TxDOT come up with a better project,” Cazares said.
Reconnecting Communities
The principles behind the fix-it-first memo are still in force in one small sliver of the infrastructure bill, known as Reconnecting Communities. The $1 billion program, representing less than a tenth of a percent of the bill’s total spending, is earmarked for the “removal, retrofit, or mitigation” of highways and other infrastructure that divides communities. A similar program in the Inflation Reduction Act contributed an additional $3.2 billion for the same purpose.
The first round of Reconnecting Communities grants were released in March, and so far advocates like Crowther are happy with the results. These grants funded capital projects to cover over or shrink highways in Buffalo; Tampa, Florida; Long Beach, California; and suburban Detroit. Even more ambitious plans for potential freeway removals in Oakland and Pasadena, California; Tulsa, Oklahoma; and Baltimore received planning dollars.
Still, these projects represent a drop in the bucket compared to the need, and the program is already enormously oversubscribed. “$1 billion isn’t enough to fix the cumulative damage of over 60 years of highway building,” Crowther said. “This really is a program that has the power to demonstrate the demand for these types of transformations across the United States.”
Crowther is also concerned that some states are using the program to “greenwash” otherwise harmful projects, including a massive freeway expansion in Austin that won a Reconnecting Communities grant to plan for a cap over a small portion of the road.
Cumulatively, these local highway expansions could have a major impact on the environment. How states spend funds from the infrastructure bill could shift the nation’s total greenhouse gas emissions 5% by 2032, according to a recent report by the Georgetown Climate Center. Whether the infrastructure law is a net positive or a net negative for the climate is now in the hands of states.
“What we’re seeing is the Biden administration hitting the limits of its power,” Cazares said. Despite the administration’s efforts to improve transit, walking, and biking infrastructure, “we’re still seeing a ton of money go from the infrastructure bill to state departments of transportation pretty much unchecked. And that money is going to be used in states like Texas to expand highways.”
For freeway fighters, state governments are the new battlegrounds, at least until 2025, when Congress will begin to consider the next big infrastructure bill. Some states, like Colorado, Minnesota, and California, have moved to limit highway expansions. But even blue states like New Jersey are charging ahead with major freeway-widening projects, Crowther said. “Even in the Democratic political leadership, there’s this dissonance that exists with roadway expansions not thought of as pouring fire on the climate crisis.”
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