FTA Holds Back on BART OAC Funding

After months of disheartening news in 2009 in which agency after agency rubber-stamped BART’s ill-conceived Oakland Airport Connector project, it was welcome news to learn that the Federal Transit Administration decided to withhold $70 million of ARRA stimulus funding, which BART needs to build the OAC. This announcement comes just a few months after Public Advocates filed a complaint with the FTA. That complaint asserted that BART’s action on the OAC violated Title VI of the Civil Rights Act, and that the OAC was thus not eligible for federal funding until BART took a close look at the project’s environmental justice effects.

The FTA agreed. In an admirably clear letter (PDF) addressed to Steve Heminger and Dorothy Dugger, the FTA requires BART to carry out analysis of the OAC’s equity impacts, or else say goodbye to the funding:

I write to inform you of the . . .  [FTA’s] serious concern regarding . . . [BART’s] pursuit of federal assistance for the Oakland Airport Connector (the Project).  Specifically, FTA is concerned with the preliminary results of a recent Title VI compliance review for BART, which revealed that BART failed to conduct an equity analysis for service and fare changes for the Project.  In light of this development, MTC and BART are now in danger of losing federal funding for the project, including . . . [ARRA] funds.  MTC and BART must now face a choice between continuing to pursue federal funding for the Project (which will require immediate corrective action of the Title VI non-compliance) or committing the ARRA funds to alternative projects within the Bay Area.

The announcement is a threat to the Airport Connector because BART is depending on significant federal funding, including the ARRA stimulus funds and a TIFIA loan, to complete the project. In public response to this announcement, BART has issued a brave press release that stands by the OAC’s so-called “benefits” and announces BART’s intentions to cooperate with the FTA moving forward. However, the press release distorts salient points so as to paint BART in a misleadingly favorable light. It emphasizes that “[o]ver the past decade, BART has diligently worked with the FTA to meet all its requirements,” while downplaying BART’s most recent Title VI non-compliance for the Airport Connector.

With respect to those Title VI requirements, the press release refers somewhat bitterly to the FTA’s “11th hour requirement,” which places “additional hurdles” standing in the way of the funding award. This statement makes it seem as though the FTA is suddenly acting on an unforeseeable whim, demanding that BART comply with unduly harsh, novel requirements. That characterization is disconnected from reality, since it’s hardly a secret that an award of federal monies is conditioned on compliance with relevant federal legislation, including Title VI. The requirement to analyze equity impacts was not a secret, but BART simply tried to skirt by it, probably hoping to dodge the delicate justice issues associated with charging a $12 round trip fare (a nontrivial percentage of daily wages for some airport employees) but without providing compelling transit improvements that would justify that steep fare increase. As we observed in September 2009, when the complaint was filed, the high fare would have a “disproportionately high and adverse effect on minority and low-income riders.” That finding then triggers a necessary showing that the project fulfills the public interest in a manner less adverse than other alternatives. This is part of the required analysis of fare and service changes that BART failed to complete.

The documentation that BART pointed to (PDF) as fulfilling its Title VI obligations, including the 2007 triennial report, did not analyze the Airport Connector. So BART must now confront the OAC’s problematic equity concerns quickly, before the fast-approaching deadline. Of course, it would have been preferable if BART had simply done that in the first place, even if doing so would have required radically rethinking the project. But it’s hardly the fault of the FTA that BART is now under a serious time crunch. The onus of carrying out required project analysis in a timely fashion lies squarely with BART.

Where does that leave us? Ironically, not too far from where we were almost a year ago, in February 2009, back when MTC first programmed the Bay Area’s regional transportation stimulus dollars. The FTA, in its letter, advises that if the Bay Area intends to keep the $70 million of stimulus funds, the best course of action would be to reprogram the money to other projects. Otherwise, we run the risk of BART not meeting the March 5, 2010 deadline in the stimulus legislation. If that were to happen, the Bay Area would lose the $70 million, and the funds would be distributed to another part of the country. That would be terrible, and we need to do whatever we can to keep that money in the region. But there’s a backup plan. In fact, there has always been a backup plan.

The State of California has essentially withdrawn itself from the business of funding transit operations, and the Governor has resorted to disingenuous, acrobatic budget tactics that allow him to continue robbing transit of funding in defiance of court rulings that he deems inconvenient. Transit agencies up and down the state have been left to fend for themselves. In these difficult times, it would be unconscionable to continue pursuing this poor excuse for a legacy project, especially at the risk of losing a precious $70 million that would better be distributed among Bay Area transit agencies for system preservation (PDF) — including almost $17 million for BART itself, $17.5 million for Muni, $6.7 million for AC Transit, $12.3 million for VTA, $2.7 million for Caltrain, $2.4 million for Golden Gate, and about $2 million for SamTrans.

Even last year, it was clear that the best use for this $70 million was not for the OAC, but for the transit agencies. The fact that we are now confronting a situation so similar to the one we faced last year is somehow ironic and disheartening. But most importantly, it is a second chance to set things right, and to use the money for transit rather than to build the Airport Connector.

Your participation in this process is both welcome and encouraged. As MTC once again faces the question of how to allocate this $70 million, it would be helpful for MTC to be reminded that transit agencies badly need the money, and that the funding should be distributed to those agencies to ensure that it stays here in the Bay Area. You can help by emailing MTC right now, and if possible, by attending next week’s Commission meeting. The meeting (I’ll also post the meeting information in the left sidebar for quick reference) is on January 27, 2010 at 10:30 a.m., MetroCenter Auditorium, 101 Eighth Street, Oakland.