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Friday, June 7, 2024 | Back issues
Courthouse News Service Courthouse News Service

Lawsuits likely after NYC congestion pricing gutted by governor

Environmental lawyer Michael Gerrard's phone has been “ringing off the hook” with groups looking to challenge the program’s suspension, he told Courthouse News.

MANHATTAN (CN) — The Manhattan Transit Authority is already facing numerous lawsuits from critics of New York City’s slated congestion pricing program. But after New York Governor Kathy Hochul announced her intention to halt the plan earlier this week, the MTA could face lawsuits from the program’s proponents.

Michael Gerrard, an environmental lawyer and professor at Columbia Law School, told Courthouse News on Friday that his phone has been “ringing off the hook” with groups looking to challenge the program’s suspension.

“There’s a great deal of interest,” Gerrard said. “I think that one or more lawsuits are highly likely.”

Hochul, a Democrat, took many by surprise when she announced that she was stopping the implementation of congestion pricing, which was set to take effect at the end of June. Under the plan, passenger vehicles were to be charged a $15 toll when entering Manhattan below 60th Street during peak hours on weekdays.

The program was slated to bring $1 billion per year to the MTA to upgrade the system’s infrastructure and address budget shortfalls.

Hochul announced the switch-up on Wednesday in a pre-recorded video.

“After careful consideration, I’ve come to the difficult decision that implementing the planned congestion pricing system risks too many unintended consequences for New Yorkers at this time,” Hochul said. 

The move puts the MTA in a precarious spot. According to Rachael Fauss, a policy adviser at good government group Reinvent Albany, the governor alone can’t halt the program.

“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.”

MTA board members, many of whom were appointed by the governor, now will need to vote on whether or not congestion pricing will be suspended. Fauss said Hochul has put them in an “impossible” position.

“They have a duty under New York State Public Authorities Law to uphold the mission of their agency,” she said. 

Gerrard agreed.

“There are real questions about whether it’s proper for the governor to be telling a board what to do,” he said. “They have a fiduciary responsibility to the agency, and what they’re being asked to do is forego a massive revenue stream, which will prevent them from undertaking many essential projects.”

Should the board abide by the Huchul’s orders, Gerrard said it could open the MTA up to a flood of legal challenges. 

“Assuming that the MTA board does approve it, there could be a claim that the MTA board is violating the 2019 statute setting up congestion pricing that told them to set it up,” he said.

FILE - Motorists travel in and out of the Lincoln Tunnel between midtown Manhattan in New York and New Jersey, in Weehawken, N.J., May 12, 2023. New York Gov. Kathy Hochul on Wednesday, June 5, 2024 indefinitely delayed implementation of a plan to charge motorists big tolls to enter the core of Manhattan, just weeks before the nation's first “congestion pricing” system was set to launch. (AP Photo/Ted Shaffrey, File)

Among the plausible environmental claims, Gerrard said, is action under the 2020 New York Climate Leadership and Community Protection Act, which requires state agencies to consider the state’s goal of limiting greenhouse gas emissions.

The 2021 “green amendment” to the New York State Constitution, which guarantees residents the right to clean air and water, could be another target.

An environmental assessment by the MTA in 2023 found that congestion pricing could decrease air pollution in Manhattan, Brooklyn and Queens.

Gerrard said the MTA board could avoid these potential challenges by ignoring Hochul’s request to axe the plan. Still, Fauss believes that the governor forced the MTA into new territory.

“Opponents to congestion pricing are suing the MTA now, and the situation Gov. Hochul created could mean that advocates for congestion pricing will also be suing,” Fauss said. “That is completely unprecedented.”

Hochul was once one of the staunchest supporters of congestion pricing. She called the plan “transformative” at a 2023 rally. She’s repeatedly denied that the program would be shelved or delayed — whether it was at a 2022 press conference or on “The View” earlier this year.

“How exciting is it for us to know that we can be the model for the rest of the nation?” Hochul said after congestion pricing got federal approval in 2023. “That's what we always do. We're always the leaders. We're always the first in America.”

Multiple reports have suggested Hochul’s about-face was, at least in part, due to political pressure. Fauss called it a “strategic error.”

“I think this was a strategic error on her part, to decree it so before lining up the political support and action necessary to make it happen,” Fauss said. 

The MTA and Hochul’s press office did not immediately respond to requests for comment.

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