On Wednesday afternoon, New York City Comptroller Brad Lander, along with a group of environmental and transportation advocates, held a press conference in which they threatened legal action against Governor Kathy Hochul to compel her to restart the congestion pricing plan that she abruptly canceled last week.
How would this lawsuit (or lawsuits) work? Why isn't the group suing right now? And what would actually need to happen in order for congestion pricing to start on June 30?
Guys, it's time for some Congestion Pricing Game Theory.
What's the basis for the lawsuit here? Doesn't the governor control the MTA, and therefore, whether the MTA implements congestion pricing?
While Governor Hochul does control the MTA, and her office appoints six members of the MTA's board (more on the board later), congestion pricing exists because of a law the state legislature passed in 2019. The law says the MTA "shall" come up with a congestion pricing scheme that raises $1 billion in tolls every year to issue $15 billion in state bonds, and use that money to improve mass transit.
By delaying congestion pricing, Governor Hochul is in violation of this law, according to Columbia Law professor and environmental litigator Michael Gerrard, who is helping to prepare the lawsuits against the governor's office.
At the press conference, Gerrard noted that he believed that Hochul's decision probably broke other laws—including the 2019 climate law that requires state officials to act in accordance with goals for decreasing greenhouse gas emissions, and the Americans with Disabilities Act, given that a swath of accessibility upgrades were supposed to be paid through congestion pricing.
"We'll bring all of these cases, all these theories together," Gerrard said. "But I think our lead argument is the 2019 statute that says the MTA 'shall' implement congestion pricing."
Gerrard also said that Hochul's insistence that her pause is "temporary" wouldn't hold water in court.
"The courts of New York are clear that an indefinite pause is tantamount to a permanent pause, and we're prepared to go to court to challenge it."
Gerrard said any lawsuit would probably name the governor and perhaps the MTA.
Who can sue?
"The best plaintiffs are the ones who are most specifically facing the harms of the action that is being delayed here," Comptroller Lander said.
That might include someone with asthma in the Bronx, where congestion pricing was supposed to fund hundreds of millions of dollars to improve air quality. Or someone who relies on the F train to get to work, where congestion pricing was supposed to pay for signal improvements. Or one of the nearly 1 million New Yorkers with disabilities, who were counting on congestion pricing to finally fund station accessibility. According to a legal settlement that advocacy groups reached with the MTA in 2022, 95 percent of all subway stations were supposed to be accessible by 2055. That excruciatingly hard-won victory is now being jeopardized by the governor's last-minute decision, and New Yorkers with disabilities could step in to sue.
"You need to do what you said that you were going to do. And you need to fund accessibility," Dr. Sharon McLennon Weir, the executive director for the Center for the Independence of the Disabled, said, addressing Governor Hochul. "And it's not that you're giving us a gift. This is the law, that the Americans With Disabilities Act says that everyone should have access, and it shouldn't be just for the able-bodied people."
The powerful business lobby the Partnership for New York City is also supporting this legal effort, and their president, Kathryn Wylde, added this icy statement to the press release: "Litigation will determine whether the governor has unilateral authority to impose an indefinite pause that effectively defunds the transit system."
Would Comptroller Lander's office join any suit?
"The City's pension funds are a small bondholder in the MTA," Lander said, referring to how credit ratings agencies have reacted negatively to the governor's congestion pricing pause. "We will be consulting with lawyers as well as to whether that gives us a cause for action or not."
Why not sue right now?
At the press conference, this was presented as a strategic choice—to wait for the MTA board meeting on June 26, and to wait and see what other City, federal, and state agencies say and do in order to have as much legal ammunition in the lawsuits as possible. But this also means that congestion pricing advocates have to keep up their momentum for another two weeks without the benefit of a lawsuit. Holding a press conference to announce you might sue isn't quite as inspiring as the lawsuit itself.
"Governor Hochul has already violated the law. We could sue right away," Gerrard said. "But we want to see what the other agencies do."
Hochul's spokesperson told the Times they don't comment on pending litigation.
What about other agencies? What is left to be done?
The last bureaucratic box to check before the tolls turned on at the end of the month was that the Federal Highway Administration/US DOT had to prepare a Value Pricing Pilot Program agreement that needed to be signed by the state DOT, the City DOT, and the MTA. This is the piece of paper that MTA CEO Janno Lieber said the governor has directed her DOT commissioner to not sign, therefore stalling congestion pricing.
But the US DOT hadn't sent the agreement before Governor Hochul made her announcement last week, and they still haven't sent it up. Congestion pricing proponents do have a friend in a high place at US DOT: former NYC DOT commissioner Polly Trottenberg is currently the deputy transportation secretary (US DOT has not responded to our request for comment).
"I have not had direct conversations with anyone in the federal government," Lander said. "It is my understanding that the Biden administration remains ready, willing, and able to move forward with congestion pricing and that if the state is willing to meet its duties to move forward it can be done on time for the June 30 implementation."
Mayor Adams has been praising Governor Hochul's decision recently and his top advisor hates congestion pricing. What if the City refuses to sign off on congestion pricing? Would they sue the Adams administration?
Yes, though Lander was quick to point out that he himself wouldn't be a plaintiff against the City as the City's Comptroller.
And while he acknowledged that the City has been sending "mixed signals" on congestion pricing, he praised Deputy Mayor Meera Joshi, City Planning Commissioner Dan Garodnick, and Health Commissioner Dr. Ashwin Vasan for all taking public stances in support of the plan.
"So there are City leaders who work with City Hall and City agencies who are quite courageously taking steps that make clear that they agree that congestion pricing must be implemented," Lander said. "Do I think that Mayor Adams should join them in fighting to implement congestion pricing? Absolutely, yes."
What about the MTA board?
This is perhaps the biggest question: What is going to happen when the full board meets on June 26? Will they pretend none of this happened? Will they express a willingness to go along with the governor's assurances that $15 billion will be found some other way? Or will they introduce a resolution to support congestion pricing?
MTA board member Andrew Albert, who is a non-voting member who represents riders, spoke at Wednesday's press conference in support of brandishing a lawsuit.
"I don't know if the MTA board will vote at the meeting on the 26th to either confirm their support for congestion pricing," Albert said. "But we have a fiduciary responsibility to make sure that everything is good with the MTA. And I'm expecting my fellow board members will be doing just that on June 26."
What could the MTA board do on June 26 to avert a lawsuit?
"They could implement congestion pricing!" Lander said in response to this question.
"The infrastructure is up, the money is spent, the approvals are achieved. All that needs to happen is the signing of that tolling agreement."
OK, but Governor Hochul has boxed herself in here, politically speaking. Wouldn't it be better for people who want congestion pricing to happen ASAP to try and figure out what she actually wants? To give her some kind of political victory (more discounted tolls for low-income New Yorkers, etc.) so she can change her mind?
This is what Rep. Dan Goldman seemed to be airing out in this tweet, albeit it buried under a bunch of hard-to-read text:
But in the meantime, all eyes are on the MTA board.
Some links to read until June 26:
- City programs to provide delivery cyclists with safe e-bike batteries are too slow to actually work.
- The Joey Chestnut Saga keeps getting dumber but Chestnut himself appears to be getting richer.
- The New York Times declares that the "party's over" for illicit smoke shops but…life finds a way.
- Cringe Mayor Turns Up the Cringe.
- RIP to this "stunning" Hamptons beach that is actually just poop.
- Every small building wants an environmental carveout, Vol. 8342453.
- Someday G trains will be full-length. But that day is not today.
- Governor Hochul said she was going to close a bunch of prisons, and we'll soon know which ones.
- The Adams administration has connected just 2,000 asylum seekers to jobs.
- When he's not (allegedly) interfering with congestion pricing, Rep. Hakeem Jeffries is reportedly putting his thumbs on the scale in the primary election between Brooklyn Assemblymember Stefani Zinerman and DSA-backed challenger Eon Huntley.
- Check out City Limits' coverage of yesterday's City Council hearing on brokers fees. (And ours too while you're at it!)
- Politico had a roundup of the debate between Rep. Jamaal Bowman and Westchester County Executive George Latimer.
- The Manhattan DA has dropped charges against seven CUNY students and faculty members who were part of last month's pro-Palestinian demonstrations.
