Environmental justice activists are chastising the Biden administration’s recent decision to rescind federal guidance that urged states to consider climate change and equity when tapping the $110 billion in federal infrastructure money that’s coming their way for roads, bridges and major projects.

In December 2021, Stephanie Pollack, the Federal Highway Administration’s acting administrator at the time, issued a memo that advised state transportation departments to use incoming money from the Bipartisan Infrastructure Law to repair existing highways before expanding them or building new ones. She also encouraged them to take climate change and environmental justice into consideration when planning the projects.

Activists celebrated the announcement, saying the memo—known as “Fix It First”—aligned with President Joe Biden’s larger ambitions of tackling the climate crisis and taking a “whole-of-government” approach to reducing the nation’s persistent health and economic disparities. But the move also triggered a political battle about who has authority over discretionary spending, since local and state governments largely dictate how they use the  money they receive from the federal government.

A coalition of Republican lawmakers, led by Sen. Shelly Moore Capito of West Virginia, quickly pushed back, with 16 GOP governors signing a letter that called it “a clear example of federal overreach.” In fact, Capito and Sen. Mitch McConnell of Kentucky, former Senate Majority Leader under the Trump administration, explicitly told state governors to ignore the guidance, saying in a second letter that “the FHWA memorandum is an internal document, has no effect of law, and states should treat it as such.”

That pressure appears to have worked.

Last month, FHWA replaced its Fix It First guidance. The agency’s new administrator, Shailen Bhatt, issued a new memo that makes no reference to highway expansions, equity considerations or climate change. That prompted backlash from several climate and environmental justice groups who worry that it’s an early sign that the White House is caving on its climate and social justice commitments, which in turn could lead states and federal agencies to disregard them entirely. 

“This memorandum not only shows unnecessary deference to the whims of some in Congress, it signals to the environmental justice community and climate advocates the administration’s move away from its equity and climate commitments,” nearly two dozen organizations, including Lawyers for Good Government, a group of attorneys and activists who advocate for social equality, wrote in a letter to Bhatt on Thursday. “This memorandum sets a dangerous precedent for other federal agencies.”

Milwaukee’s Fight Over Expanding I-94

Policy experts and transportation advocates broadly agree that it’s unclear how much influence the Fix It First guidance has had so far on state funding decisions, or what exactly its reversal will mean moving forward.

But what is clear, said Jillian Blanchard, director of Lawyers for Good Government’s climate change program, is that state officials will now feel less pressure to consider things like climate change and equity when weighing environmental and social impacts of major projects such as  the proposal to expand a section of I-94 that runs through Milwaukee, Wisconsin.

Like other highway expansion plans in recent years, the proposal by the Wisconsin Department of Transportation has come under fire by environmental justice and community activists who say such projects often lead to more pollution for low-income families, immigrants and communities of color, which research shows disproportionately live near highways and other major thoroughfares. Roughly 40 percent of Milwaukee’s residents are Black, and nearly 20 percent are Hispanic, according to census data.

“When you take out the priority of fixing existing roads first and you say expanding freeways is as equal and as important as fixing roads first, what that means, in reality, is that money will go to these new fancy highway projects that continue to dissect communities,” Blanchard said.

State transportation officials have generally supported expanding highways, arguing it helps decrease traffic congestion and improve safety. Wisconsin transportation officials made those same arguments for the I-94 proposal, saying the estimated $1.2 billion project, which would add a fourth lane to the freeway in both directions for about 3.5 miles, will improve safety, replace aging infrastructure and reduce congestion on the nearly 60-year-old highway.

But research has generally shown that highway expansions only briefly decrease traffic before once again increasing as more people choose to drive and fill the added road space—a term researchers call “induced traffic.” The project has also faced significant criticism in the Milwaukee metro, which has a long history of interstate projects that have cleaved communities in two, contributed to racial segregation and destroyed neighborhoods.

“It is a massive investment in infrastructure that caters to suburban commuters and is a project that saddles inner city residents with the environmental impacts of that infrastructure,” said Tony Wilkin Gibart, executive director for Midwest Environmental Advocates, one of the groups opposing the expansion. “That in itself is an environmental injustice.”

Critics of the expansion, which includes several members of Milwaukee’s city council and the Milwaukee County board, have said they’d rather see the money go toward fixing roads and reinvigorating the city’s ailing public transit system. In 2010, the state slashed public transit funding by one tenth, and according to the Wisconsin Public Transportation Association, that money has only been partially restored through cuts to transit between 2011 and 2021 that exceeded any increases.

According to the Wisconsin Department of Transportation, expanding the highway, opposed to simply fixing it, will cost about half a billion dollars more. 

Wisconsin transportation officials said they solicited and took into account feedback from the community on the “socio-economic and environmental effects” of this project and another one on the adjacent W175 corridor.  “We remain committed to developing infrastructure solutions that benefit the public for decades to come,” they said. “We’ve listened to the community and stakeholders, and their feedback played an important role for modifications to the preferred alternative.”

But some activists say that money should go toward restoring public transit funding.

State transportation officials initially caved to public pressure, extending the project’s environmental review for another year in 2021, only to announce last year that the state would move forward with expanding I-94. That likely gives opponents until this fall to change the Wisconsin Department of Transportation’s mind, which some advocates say could now be harder to do without the Fix It First guidance in place.

Some groups say they may sue the state once the final decision is made, arguing that the project’s disproportionate impacts on Milwaukee’s communities of color is a violation of federal anti-discrimination laws.

“I hope that the federal agencies will take steps to make sure that the obligations of recipients of federal funding adhere to their duties and obligations under Title VI,” said Dennis Grzezinski, a Milwaukee attorney who has been representing groups opposing the expansion project. “We’ll see whether my optimism and confidence are misplaced or whether the agency fulfills its responsibilities and obligations.”

Activists See Ominous Signs for Biden’s Agenda, Including Justice40

The Fix It First reversal wasn’t the only Biden administration decision that environmentalists criticized this week.

On Monday, federal officials approved the Willow Project, ConocoPhillips’ controversial oil drilling project in Alaska, which is expected to release 9.2 million metric tons of climate-warming emissions every year—roughly the same amount produced by 2 million cars. Environmentalists said the move not only undercut Biden’s climate goals, but contradicted his campaign promise to prohibit new drilling on public lands.

“I’m not aware of any other specific federal agency guidance that has been reversed or revised recently in response to Republican pressure,” said Blanchard from Lawyers for Good Government. “However, the administration’s recent move to support the Willow Pipeline Project days after it committed to limit drilling in Alaska evidences a larger pattern of caving to Republican pressure.”

Some activists worry the recent decisions could also foreshadow rougher roads ahead for the Biden administration’s broader environmental justice effort, much of which hinges on the implementation of the Justice40 initiative.

President Biden established Justice40 in 2021 through an executive order, which directs federal agencies to deliver 40 percent of the “overall benefits” of their environmental and energy investments to disadvantaged communities. Much like Fix It First, Justice40 is legally non-binding and relies on voluntary buy-in from the government bodies receiving the guidance. 

Without a strong implementation of Justice40, many activists fear that progress on environmental justice will end when Biden leaves office. In fact, some Republican-led states, like Texas, have frequently disregarded Biden administration guidance when it comes to discretionary spending, showing how state officials could ultimately obstruct Biden’s environmental justice agenda.

“These states need guidance on prioritizing federal funding to disadvantaged communities if Justice40 is ever going to be implemented, if climate change is going to be considered in these decisions and if equity is going to be considered in these decisions,” Blanchard said. “It’s going to have to start from the top pressuring states to do that.”