THE COMING CIVIL WAR BETWEEN DEMS OVER CONGESTION PRICING, UGLY COURT ROOM BRAWL LOOMS
LEGAL FIGHT WOULD DRAWN IN ATTORNEY GENERAL LETITIA JAMES, LIKELY BIDEN ADMINISTRATION TOO. TRANSIT 'SUMMER OF HELL' COULD BECOME YEARS.
Stopped subway trains at the foot of the Williamsburg Bridge in Brooklyn after Hurricane Sandy, Nov. 1, 2012. Photo credit: JB Nicholas.
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Next come the lawsuits.
The courtroom equivalent of a civil war between Democrats is brewing over Gov. Kathy Hochul's unilateral, last-minute cancellation of congestion pricing in New York City. If it happens, it will polarize Democrats and likely draw in the Biden Administration through its Department of Transportation.
But first there’s the chance the Metropolitan Transit Authority might implement congestion pricing anyway.
The outcome of the fight could determine whether New York City and its suburbs have a reliable public transportation system, or not, for the foreseeable future.
The fight over congestion pricing is already splintering Democrats in New York and threatens to explode into another divisive national dispute—unless Gov. Hochul backs down and allows congestion pricing to proceed.
New York's first-in-nation congestion tolling plan is the fruit of decades of work by environmental and public transportation advocates. By charging people $15 to drive in the heart of Manhattan during weekdays (trucks pay $24-to-$36), the plan is designed to motivate people to bike, ride public transportation or walk instead.
Vehicles alone account for 22% of greenhouse gas emissions in the US, according to Congress. Even if electric vehicles were adopted overnight, avoiding the worst of climate change requires fewer cars overall, scientists say.
The current plan rose from the ashes of 2017's so-called "Summer of Hell"—when cascading public transit failures caused then-Gov. Andrew Cuomo to officially declare a state of emergency in Executive Order No. 168. The plan was approved by the state legislature and signed into law by Gov.Cuomo in 2019.
The alternative, Gov. Cuomo warned, was a 30% fare increase.
New York spent five years finalizing its congestion pricing plan, holding contentious public hearings and pushing it through the federal transportation bureaucracy—which had to approve the plan too because federal tax dollars go into maintaining the Nation's roads and public transit systems.
Finally, New York spent more than $500 million on tolling gantries, cameras and all the other infrastructure needed to implement it.
Just three weeks ago, Gov. Hochul touted the plan.
"London, Milan, Stockholm, and Singapore have all implemented similar plans with great success," Gov. Hochul said at the Global Economic Summit in Ireland on May 20. "In New York City, the idea stalled for 60 years until we got it done earlier this year."
Hochul said expert studies predicted it would reduce traffic by 17%, meaning "less gridlock, traffic and pollution. Fewer cars means safer streets, cleaner air and more room to maneuver for pedestrians and bicyclists."
It also meant about $1 billion every year in projected revenue to modernize New York's public transit system and stop a repeat of the Summer of Hell. The MTA planned to take it and turn it into $15 billion worth of bonds to fund modernization.
The improvements would "make public transit faster and more accessible,” Hochul said in Ireland. “That’s key because we’ll never change people’s habits if we don’t offer safe, reliable alternatives to driving that work for everyone."
Wired calls it "one of the most ambitious American climate projects, maybe ever."
The agency that manages New York's public transit system, the Metropolitan Transit Authority, or MTA, was set to implement the plan June 30.
With only two full days left in the current legislative session at the state capital in Albany, Gov. Hochul announced she was canceling the plan.
"I have directed the MTA to indefinitely pause the program," Gov. Hochul declared in a video released to select news publications last Wednesday. "Implementing the planned congestion pricing system risks too many unintended consequences at this time.”
There was no news conference. There was no chance to ask the governor questions. Hochul presented it as a fait accompli.
Gov. Hochul’s press office did not reply to an invitation to comment. Neither did Mayor Eric Adams’s press office.
2007’s “Subway Sweethearts” Patrick Moberg and Camille Hayton met on a B train, Nov. 9, 2007. They broke up in 2008. Photo credit: JB Nicholas.
Blowback was immediate and severe.
Politico reported it "lit Albany’s collective hair on fire." Activists called it "betrayal" and "sabotage." A New York Times editorial said it was "grievous misjudgment." Green news blog Heatmap put a point on it, calling it "the worst climate policy decision made by any Democrat in recent memory."
Conservative City Journal agreed it was "one of the great rug-pulls in New York history." The Chair of the State Senate Finance Committee, Liz Krueger, called it illegal. Rep. Ritchie Torres alleged it violated the Constitution.
“I’ve gotten more telephone calls, emails, texts & voicemails in support of congestion pricing than any other other issue—ever—during my decade in the NYS Senate (that even includes hatred from anti-vaxxers),” State Sen. Brad Hoylman said in a message posted to social media Friday, two days after Gov. Hochul's proclamation.
Even MTA officials blasted Gov. Hochul.
“It’s fucked up," one told Streetsblog. Workers were "shellshocked," another said. A third said it was like "the day Trump was elected." A fourth told Curbed it was "crazy," "political amateurism" and "one of the most astonishing things I’ve ever seen.” A fifth compared it to “shit for breakfast.”
Environmentalists were particularly enraged.
“Congestion pricing is not just a NYC story,” Kirk Hovenkotter, executive director of Seattle-based Transportation Choices Coalition, told The Urbanist. “It’s a national story."
Robinson Meyer, Heatmap's founder and Executive Editor, wrote it was "worse than the Mountain Valley pipeline, worse than Alaska's Willow project" because "New York was bushwhacking a trail for everyone else to follow."
"If congestion policy was a success there, then other American cities could experiment with it in some form," he explained. "By shuttering the policy in New York, she has poisoned pro-climate urban policies everywhere."
Still, the suburbs celebrated.
A passenger attempts to revive an unconscious sudway rider, May 11, 2011. Photo credit: JB Nicholas.
Gov. Hochul cast her cancellation of congestion pricing as a move to minimize the fiscal burden "everyday New Yorkers" faced.
But Politico reported the real reason was national Democrats feared it would hurt them in tight election races for the House of Representatives in Nov. , especially in the suburbs of New York. House minority leader Rep. Hakeem Jeffries leaned on Gov. Hochul to kill the plan.
“Leader Jeffries supports a temporary pause of limited duration to better understand the financial impact on working-class New Yorkers,” Andy Eichar, Jeffries spokesman, said on Wednesday.
Gov. Hochul denied politics played a role in her decision during a news conference Friday evening—after the legislature left her to twist in the wind.
Whatever Hochul's reason for "pausing" congesting tolling, she had no real plan for replacing the lost billions needed to fund public transit modernization and keep the subway running. The legislature did not even come close to helping her find a replacement. Instead, it reaffirmed its support of congestion pricing when it closed for business for the year on Friday.
Kevin Willens, the MTA's Chief Financial Officer, and its General Counsel, Paige Graves, issued a joint statement late Friday evening saying the MTA had to take immediate action to plug the $15 billion hole Gov. Hochul blew open in its budget. To the MTA, the cancellation of congestion pricing is not a theoretical future problem. It's an immediate, practical one. It has to perform subway triage to avoid another Season of Hell.
The cancellation "has serious implications for the MTA's 2020-2024 Capital Program and likely other aspects of the agency's financial condition." It means "the MTA will need to reorganize the Program to prioritize the most basic and urgent needs."
Modernization would have to wait.
"Improvement projects like electric buses, accessible (ADA) stations and new signals will likely need to be deprioritized to protect and preserve the basic operation and functionality of this 100+ year-old system," the statement said.
While they recognized New York law "places an obligation on MTA to implement a congestion pricing program," federal laws and regulations require it to be "approved by New York State" and Gov. Hochul's video Tik-Tok decree meant "we no longer have the state's consent."
Gov. Hochul's cancellation of congestion pricing risks making transit hell permanent.
Tim Minton, the MTA’s communications director, did not respond to an invitation to comment.
Mermaids heading to the Coney Island mermaid parade on the subway, June 2, 2008. Photo credit: JB Nicholas.
With the MTA in turmoil, Gov. Hochul faces the possibility of it going rogue.
Krueger, Chair of the State Senate Finance Committee, even published an editorial in the Daily News explicitly encouraging Board members to do just that: "the MTA Board must refuse to comply."
The MTA Board must vote to approve Gov. Hochul's congestion pricing "pause." The 23-member Board has 14 voting members but one seat is vacant. That means Gov. Hochul needs seven votes to legally quash the plan. The Board is scheduled to meet June 26. At least five Board members oppose canceling congestion pricing, Politico reports.
Even if the Board approves Gov.Hochul's decision—or she cuts a renegade Board out of the chain-of-command entirely with an emergency executive order—Hochul and the MTA are certain to be sued.
Michael Gerrard, an environmental lawyer and professor at Columbia Law School, told Courthouse News his phone has been “ringing off the hook.”
“There’s a great deal of interest,” Gerrard said. “I think that one or more lawsuits are highly likely.”
Environmental law was born in New York State.
It started with the enactment of the Forever Wild Clause in 1894—a special amendment to the State Constitution that protects the state Forest Preserve. It was brought into the modern age by a succesful federal lawsuit to stop ConEd from turning Storm King Mountain in the Hudson River Fjord into a giant hydroelectric generator.
New York's special protections for the environment offer prospective plaintiffs a literal arsenal of legal weapons to choose from—including a brand-new Green constitutional amendment guaranteeing all New Yorkers the "right to clean air and water, and a healthful environment."
Riders play the “shell game” on the subway, Nov. 13, 2010. Photo credit: JB Nicholas.
Rachael Fauss, a policy adviser at good government group Reinvent Albany, agreed the governor alone can’t halt congestion pricing.
“She can’t change the law unilaterally," Fauss said, "so when she directed the MTA to indefinitely pause congestion pricing, that was her doing something that we think was, on its face, just illegal on its own.”
Senator Kruger, in her Daily News op-ed, argued it was “arbitrary and capricious.”
New York civil practice law Article 78 allows courts to reverse agency decisions that are "arbitrary and capricious or an abuse of discretion." It also gives courts the power to order agencies like the MTA to "perform a duty enjoined upon it by law."
Rep. Torres, in his constitutional condemnation of Gov. Hochul's decision, pointed to yet another possible legal ground: separation of power principles. The legislative branch makes laws. The executive branch enforces them. It doesn't get to choose which laws it enforces. It has to enforce all of them.
While the MTA would be represented by its own lawyers, any litigation will draw the City, state Attorney General Letitia James and even the Biden Administration into the legal war as interested parties.
In their joint statement, Willens and Graves, the MTA's CFO and lawyer, said the MTA couldn't go forward with congestion pricing because "applicable federal law and regulation" required the MTA have the State's consent which, according to them, Hochul revoked.
In response to any lawsuit, the MTA will likely argue the same thing. Because interpreting federal law may decide the outcome of the suit, the federal Department of Transportation, led by Pete Buttigieg, would have the right to intervene. The judge assigned to decide the case could also invite it too.
That would put Pres. Biden on the hot seat—along with Mayor Eric Adams and James. Would they side with Hochul in court? Would they ask a judge to kill congestion pricing? If they did, environmentalists would subject them to withering criticism—perhaps comparable to the criticism leveled at Pres. Biden for bankrolling bombs to accused war criminals.
All this in the months leading up to Nov.’s election.
Instead of helping Democrats win, Gov. Hochul might’ve helped them lose. She’s already made congestion pricing a topic of heated national debate.
If you have first-hand knowledge about discussions among any government officials, MTA, New York State, New York City, Federal government, regarding congestion pricing or tolling, please contact me. Confidentiality guaranteed.
jasonbnicholas@gmail.com thefreelancenews@proton.me
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