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"The Opportunity Impact Statement,"

by Opportunity Agenda March/April 2009 issue of Poverty & Race

The recent and ongoing investments in the nation’s economic recovery have the potential to not only revitalize our economy, but also the American promise of opportunity itself. American opportunity is the idea that everyone should have a fair chance to achieve his or her full potential, and that ensuring this fair chance requires not only certain basic conditions, but also the fulfillment of specific core values: equal treatment, economic security and mobility, a voice in decisions that affect us, a chance to start over after misfortune or missteps, and a sense of shared responsibility for each other as members of a common society. Fulfilling those values is not merely good policy, but part of our fundamental human rights.

An important chance to promote opportunity arises each time a governmental body supports or controls a major public or private project. Taxpayers support, and governments initiate and regulate, a wide range of projects, from highways and mass transit lines, to schools and hospitals, to land use and economic development, to law enforcement and environmental protection. These projects, in turn, can improve or restrict access to quality jobs, housing, education, business opportunities and good health, among other opportunities. And, depending on their design and administration, they can serve all Americans fairly and effectively, or they can create and perpetuate unfairness and inequality based on race, gender or other aspects of who we are.

Despite the progress we have made as a nation, research shows that people of color, women, immigrants and low-income people continue to face unequal barriers to opportunity in a range of situations, including education, employment, health care, housing, economic development, asset- building, business opportunities, environmental protection and in the criminal justice system. In authorizing, funding and regulating projects, federal, state and local governments have a responsibility to keep the doors of opportunity equally open to everyone. And history shows that when they fulfill that role, we move forward together as a society.

The need for promoting opportunity is stronger than ever, given current efforts to revitalize the economy through the American Recovery and Reinvestment Act of 2009 and other recovery proposals under consideration by the President and Congress. These proposed plans involve unprecedented federal spending linking multiple sectors, and create an opportunity for extraordinary and lasting investment in communities throughout America that need assistance in moving forward toward a strong economic future. This memo introduces a new and promising policy strategy designed to ensure that publicly supported and regulated projects provide equal and expanding opportunity to all the communities they serve: The Opportunity Impact Statement.

The Idea

The Opportunity Impact Statement (OIS) is a road map that public bodies, affected communities and the private sector can use to ensure that programs and projects offer equal and expanded opportunity for everyone in a community or region.

On both the federal and state level, impact statements are a well-established practice, intended to ensure that policymakers have full awareness of the impact of proposed rules before taking major action. Fiscal impact statements from the non-partisan Congressional Budget Office outline the costs and benefits of congressional legislation, and many states have adopted similar financial analyses for legislative action. Iowa, Connecticut and Minnesota have established impact statements that review proposed changes in criminal justice policy to determine whether such action will exacerbate or reduce racial disparities in sentencing and incarceration. Perhaps the most well-known impact statement is the federal Environmental Impact Statement (EIS) found in the National Environmental Policy Act (NEPA) that federal agencies must prepare when a major construction or other project is likely to have a significant effect on the environment. An EIS is prepared based on available data and investigation. It compares the proposed project to other alternative approaches, and invites public scrutiny and public comment. Ultimately, it aims to facilitate informed, sophisticated and democratic decision-making that pursues sustainable development in service to the public interest.

The Opportunity Impact Statement seeks to pursue similar goals in the context of opportunity. Just as the EIS is designed to “force federal agencies to carefully consider significant environmental impacts arising from projects under agency jurisdiction” and to create a formal procedure in which “members of the public are afforded an opportunity for meaningful participation in the agency’s consideration of the proposed action,” the Opportunity Impact Statement will bring both the voice of affected communities and balanced analysis to the table in the context of opportunity.

Using empirical data as well as community input and investigation, the OIS will assess the extent to which a project will expand or contract opportunity for all—e.g., Would jobs be created or lost? Would affordable housing be created or destroyed?—as well as the extent to which it will equitably serve residents and communities of different races, incomes and other diverse characteristics—e.g., Would displacement or environmental hazards be equitably shared by affected communities?

These factors would be considered in the context of communities’ differing assets, needs and characteristics. For example, will a construction project offer job-training opportunities to both women and men from communities with high unemployment rates, or will it bypass those communities? Will a new highway or light rail system connect distressed minority neighborhoods to quality jobs, hospitals and green markets, or will it further isolate those communities? Experience shows that simply asking these types of questions and requiring a thorough and public response will have a positive effect on the development of publicly subsidized or authorized projects.
The Opportunity Impact Statement would include four major elements:

1. Coverage of Projects Involving Public Funds or Governmental Engagement.

The mechanism applies to projects intertwined with taxpayer or government resources. It does not apply to wholly private activities.

2. Data Collection and Analysis.

The Opportunity Impact Statement will collect and analyze data regarding the characteristics of affected communities (e.g., employment rates and health status, socioeconomic and racial make-up, etc.), as well as the assets and opportunities currently available to those communities (e.g., access to hospitals, schools, banking, jobs, etc.), both independently and in comparison to surrounding communities. In some cases, historical patterns (e.g., patterns of hospital closings, housing segregation) will also be relevant. An important part of the analysis will be the consideration of alternative approaches to achieving the goals of the project that may be more effective in ensuring equal access to greater opportunity, as well as changes that could mitigate or remove negative implications. Also important will be consideration of the proposed project’s compliance with equal opportunity laws and other applicable legal standards.

3. Public Comment and Participation.

Members of the public—especially communities that would be positively or negatively affected by the proposed project—will participate in the decision-making process in two ways. In the initial fact-finding stage, input from civil society will help guide information-gathering regarding relevant impacts, potential alternatives and sources of additional information. Once a preliminary assessment has been created, the public will have the opportunity to comment on the conclusions, express concerns or support, and complement factual information with practical human experiences and interaction.

4. Transparency and Accountability.

The OIS process will result in a public, written report, as well as a record of the goals, data, analysis and public comments that led to the report’s conclusions. The report will guide governmental and community decision-making regarding the proposed project while providing guidelines for the future development and regulation of projects that are ultimately approved.

Legal Underpinnings

A network of federal laws provides the underpinning for the Opportunity Impact Statement. Title VI of the Civil Rights Act of 1964 and the federal regulations that implement it prohibit policies that have a discriminatory intent or effect based on race or language ability in federally funded programs. Section 504 of the Rehabilitation Act prohibits discrimination in those programs based on disability. And Title IX of the Education Act prohibits gender discrimination in federally funded educations programs. Each of these laws requires the analysis of data similar to that covered by the OIS.

Moreover, laws in particular areas like health, housing and the environment require information collection and analysis. The Environmental Impact Statement requirement in federal law covers impact on the human environment in ways that may overlap with the Opportunity Impact Statement. Medicaid law and other health care laws prohibit discrimination against low-income people and communities under certain circumstances.

In addition to these federal laws, international human rights laws support the use of the Opportunity Impact Statement. These include the Covenant on Civil and Political Rights, the Convention on the Elimination of Racial Discrimination, the Convention on the Rights of the Child, and the Convention on the Elimination of Discrimination Against Women (CEDAW). In a recent effort, the City of San Francisco adopted CEDAW as part of its municipal law, resulting in a gender audit that was similar in key aspects to the Opportunity Impact Statement.

The U.S. Supreme Court has increasingly relied on these standards in its interpretation of domestic legal obligations.

Adoption and Implementation

Existing law supports the use of an OIS process in many instances. The web of federal laws and treaties described above support and, in some cases, require the collection, reporting and consideration of impact data based on race, ethnicity, gender, disability and language status. Laws in many sectors, such as health care and education, require inclusion and equitable treatment of low-income communities. And existing mechanisms, such as the Certificate of Need process that many states use to consider the distribution of health care resources, require only minor practical changes to fit within the Opportunity Impact Statement model. Indeed, Executive Order 12250 and a number of agency implementing regulations under Title VI appear to require some affirmative mechanism of this kind.

How It Will Work

As described above, the Opportunity Impact Statement draws from the lessons of the Environmental Impact Statement. Similar to the EIS, the Opportunity Impact Statement will seek to “provide a full and fair discussion of significant… impacts” and “inform decision makers and the public of the reasonable alternatives which would avoid or minimize adverse impacts.” As with the EIS, agency implementation of Opportunity Impact Statements will balance both the need for efficiency in review of necessary government-funded projects with evidence-based evaluation and transparency. The process envisions that an agency will have approval authority over projects within its mandate, and will use the Opportunity Impact Statement to guide and strengthen its evaluation of proposals.
The OIS will take place in four stages:

1. Opportunity Assessment

The Opportunity Assessment is an initial agency evaluation of the impact a project may have on affected communities’ opportunity. This assessment will be submitted by those proposing the project under review, and will serve as either a gateway to a complete and full Opportunity Impact Statement or, with a Finding of Equal and Expanded Opportunity, permit the proposed plan to move forward without changes.

2. Draft OIS

The Draft OIS should encourage both solid analysis and clear presentation of the alternatives, allowing the agency, the applicant and members of the affected communities to understand the opportunity implications of the proposed project.

3. Public Comment

The process provides for an open and substantive Public Comment Period, including proactive outreach to stakeholders.

4. Final OIS

The Final OIS will assess, consider and respond to all comments. In many cases, the Opportunity Assessment or OIS will reveal no cause for denial or modification, and the project will go forward. Data and public comments developed in the process, however, may be part of subsequent monitoring or complaint resolution.

Conclusion

The Opportunity Impact Statement carries the potential to expand opportunity greatly in communities around the country while encouraging public accountability and civic engagement. Moreover, it is a flexible tool that can be applied to any number of projects, big or small. We believe that providing the Opportunity Impact Statement is an important step in realizing our society’s promise as a land of opportunity.

Opportunity Agenda The Opportunity Agenda was founded in 2004 with the mission of building the national will to expand opportunity in America. Detailed inf. at www.opportunityagenda.org. Further inf. on the Opportunity Impact Statement is available from Juhu Thukral, jthukral@ opportunityagenda.org
 

Notes:

A full description of the proposed Opportunity Impact Statement Process (along with footnoted citations, which have been deleted from this edited version), and an example of how it could be applied, for example, to a public transit project, can be reviewed at www.opportunityagenda.org.

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