Thursday, February 11, 2021

Pine Street Coalition Demands Reopening of Environmental Justice Process, Allow Consideration of Alternative Designs as Per Regulations

TO: FHWA, VTrans, City of Burlington FROM: Pine Street Coalition DATE: 02-11-2021 RE: Demand to Re-open Environmental Justice LSDSEIS Comment Period on the Burlington, Vermont Project MEGC-M5000(1) Southern Connector/Champlain Parkway Project and Present Alternatives for Public Comment The Pine Street Coalition, on behalf of itself and its members, hereby demand that you re-open the comment period on the LSDSEIS Environmental Justice review of the Burlington, Vermont Project Megc-M5000(1) Southern Connector/Champlain Parkway Project Chittenden County, Vermont. The reasons for re-opening the comments include, but are not limited to, the following: 1. The Covid-19 pandemic gave rise to a governmentally-declared state of emergency in the State of Vermont which encompassed the comment period time, curtailing participation, particularly by affected persons intended to be protected by environmental justice principles. On March 13, 2020, Vermont governor Phil Scott declared a state of emergency relative to the Covid-19 pandemic. That state of emergency continues through the present time. The state of emergency impacts every aspect of citizens’ participation in civil society. Child care and transportation that enable in-person participation in hearings is restricted. As noted in the letter of Steve Goodkind appended to the Pine Street Coalition comments, this marks the first time that a NEPA document published for comment for a Burlington public works project was not made available in hard copy at City Hall and public libraries; it was only available online. A December 2020 Vermont Department of Health Data Brief details the disproportionate impact of Covid-19 on Vermonters who are Black, Indigenous, and People of Color. Chittenden County had the highest rate of Covid-19 among BIPOC communities, at a rate much higher than the state average. June and July 2020 represented the peak instances of Covid-19 cases among BIPOC Vermonters. The LSDSEIS – a 556 page technical document -- was digitally distributed for public comment on July 10, 2020. The only public hearing on it was held – online via a web conferencing application, with a small number of in-person seats available to persons who preregistered – on July 29, 2020. Comments closed on August 24, 2020. This time period coincides with the peak instances of Covid-19 cases among BIPOC people in Chittenden County. Families were preoccupied with keeping their loved ones alive, accommodating schooling and working from home, loss of work and income, and profound disruption to the fabric of their lives. Despite the highly unusual circumstances of a state of emergency -- in which in-person gatherings were strictly limited, where hard copies of the document were not available, in which the only access to the documents was online, and access to the hearing was either online or required advance online registration (only one person, Pine Street Coalition member Steve Goodkind, attended in person) while the low-income people of the affected community have lower rates of internet access and were, in many instances, coping with working from home and children at home, and in which the affected environmental justice community was disproportionately affected by Covid just at the time of this hearing – you afforded only the minimally-prescribed 45 day comment period. This was a time for expanding the comment period beyond the minimally-prescribed 45 days and for taking other steps to ensure that voices of the affected community were heard, such as making paper copies available on request. The affected Black, Brown and immigrant community members were unable to meaningfully participate in the LSDSEIS comment period within the timeframe and under the logistical constraints presented. We therefore demand that you re-open the comment period for a period of at least 60 days, and take reasonable steps to make the LS DSEIS available in hard copy to members of the community, and engaged in further measures to ensure that the voices of the affected community are heard. 2. The presentation made at public hearing by FHWA, VTrans and the City of Burlington stated that these agencies had already made both a determination regarding Environmental Justice and selection of a single project design prior to accepting comments. No alternatives to either the project design or the environmental justice determination were presented Only one public hearing was held on the LSDSEIS, on July 29, 2020, via Zoom (presenters at the ‘outreach meeting’ in September 2019 did not even advise the public that the purpose of the meeting was to accept comments pertaining to environmental justice). At that one public hearing, a PowerPoint presentation was made to the public prior to acceptance of comments. That PowerPoint presentation states, at Slide 36: The FHWA, VTrans and City of Burlington announced its determination of no disproportionate impact BEFORE accepting any comments from the public, and a month prior to the close of the comment period. Such process turns NEPA on its head. The fundamental objective of NEPA is to ensure that the decisionmaker is informed by the NEPA process including public comment prior to making a decision. Here, the FHWA, VTrans and the City of Burlington announced its decision before you had heard from the people whose input is mandated by NEPA and Environmental Justice policies. The announcement of that determination precluded consideration of any other alternative – and indeed, no alternatives whatsoever were presented as part of the LS DSEIS process. Despite recission of the 2010 RoD, and despite the fact that the purpose of Environmental Justice review is to obtain comment from the affected communities on the impact of the various alternatives, the public was presented only with what is designated the “preferred alternative” in the LS DSEIS. No information was shared, and no comments sought, on any alternatives other than this one “preferred alternative”. Agencies “must, in fact, consider all of the alternatives discussed in an EIS.” 40 CFR §1505.1(e) and CEQ FAQs #1. The object of identifying a particular alternative as the “preferred alternative” is so that the public can be aware of the agency’s position when making its comments on the range of alternatives. 40 CFR §1502.14(e). Presenting ONLY the “preferred alternative” with no other options in the LSDSEIS wholly deprives the affected community of any meaningful opportunity to participate and comment in the decision-making process. Because the 2010 Record of Decision has been rescinded, all the Alternatives considered in the 2009 EIS document should be under consideration and open to comment. Those Alternatives include Build Alternative 1, which the same agencies—FHWA, VTrans and the City of Burlington – are now proceeding with in a separate NEPA process. The Railyard Enterprise Project, without the segment of the proposed Parkway running on Pine Street between approximately Marble Avenue and Main Street, is precisely the alternative that will alleviate harmful impacts to the Maple-King community. The LSDSEIS, with no alternatives, was released to the public on July 10, 2020; the public hearing was held July 29, 2020. Supplemental scoping for the Railyard Enterprise Project which bears directly on the environmental justice aspects of the Champlain Parkway project was released August 5, 2020. The public in general, and the affected Environmental Justice community in particular, should be given information about and opportunity to comment on this alternative. CONCLUSION: The Covid-19 pandemic and related state of emergency, with its particularized impacts on the BIPOC community in Vermont, deprived affected members of the environmental justice community of opportunity to meaningfully participate in this LS DSEIS commenting process. The announcement by FHWA, VTrans and the City of Burlington that an environmental justice determination had already been made and an alternative already selected prior to accepting public comment inverted the NEPA process and excluded the public, including the affected members of the environmental justice community, from meaningful participation in this LS DSEIS commenting process. We therefore demand that FHWA, VTrans and the City of Burlington: 1. Release a revised LSDSEIS which sets out a range of alternatives presently under consideration, including the Railyard Enterprise Project/Build Alternative 1; 2. Disseminate public outreach materials indicating that a range of alternatives is under consideration, and that selection of an alternative as well as a determination regarding environmental justice impacts will be made AFTER public comments are received and considered; 3. Re-open the public comment period, after releasing these described documents, for a period of at least 60 days, while making all efforts to ensure that the documents are made available in the affected community and that comment is actively solicited (not merely accepted), taking into consideration the logistical constraints of the Covid-19 pandemic. Pine Street Coalition, By Their Legal Counsel, /s/Cindy Ellen Hill, Esq Cindy Ellen Hill, Esq. Hill Attorney PLLC, 144 Mead Lane Middlebury

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