NYC Comptroller Lander & Coalition of Legal Experts and Potential Plaintiffs Announce Plan to Explore Legal Avenues to Resume Congestion Pricing

 

Announcement comes after Governor Hochul pulled plug on the first-in-the-nation congestion pricing plan 3 weeks before start

Failure to implement plan could be a violation of state law, 2021 Green Agreement, among others

New York City Comptroller Brad Lander and a broad coalition of legal experts, potential plaintiffs, and advocates announced they are exploring all legal avenues, including multiple lawsuits, to resume New York City’s congestion pricing plan, which Governor Kathy Hochul walked back at the eleventh hour.

After years of planning, extensive public testimony, approvals from multiple layers of government, and hundreds of millions of dollars in infrastructure spending, Governor Hochul announced an “indefinite pause” to New York City’s congestion pricing plan last week. The fee on vehicles entering the Manhattan Central Business District (CBD) was set to begin on June 30 and funnel an estimated $1 billion to the Metropolitan Transportation Authority’s (MTA) annually.

“Governor Hochul took a disastrously wrong turn: halting the implementation of congestion pricing harms New York City’s goals of reducing emission and improving air quality, and leaves a $15 billion hole in the MTA’s Capital Program, funding that is essential to update decades-old signal technology that causes train delays and install elevators that will enable the MTA to reach its legally-mandated 95% accessibility goal by 2055,” said Comptroller Brad Lander. “This sudden and potentially illegal reversal wronged a host of New Yorkers, who have a right to what was long promised to all of New York—a world-class mass transit system that works for all. This broad coalition of legal experts and potential plaintiffs will act to ensure the swift and inevitable implementation of congestion pricing—even if it means taking their cases to court. We’re here to steer our shared future back on track.”

In response to the Governor’s about-face, Comptroller Lander worked together with advocates to assemble a coalition of legal experts and impacted parties who intend to challenge the Governor’s last-minute reversal in court. Such groups include, but are not limited to:

• New Yorkers with disabilities, who are depending on the MTA’s commitment to making 95% of the city’s 472 subway stations ADA accessible by 2055;
• Residents of the CBD that are adversely impacted by congestion, such as those with respiratory illnesses;
• Businesses based in the CBD that are adversely impacted by congestion;
• MTA board members, who voted to adopt congestion pricing in order to meet their capital plan, relying on the expectation that city, state, and federal actors would comply with responsibilities under the law;
• MTA bondholders who own bonds backed by expected revenues from congestion pricing.

The coalition is developing lawsuits on the basis of the following statutes including, but not limited to:

• Central Business District Tolling Program (CBDTP) (NY Vehicle and Traffic Law § 1704): Article 78 of NY Civil Practice Law and Rules provides an avenue to challenge the states failure to implement congestion pricing, as required by legislation passed in 2019.
• Section 7.2 of the Climate Leadership and Community Protection Act (CLCPA): The Governor and New York State agencies, including NYS Department of Transportation and the MTA, are required to act in a manner consistent with statewide greenhouse gas emissions reduction goals. Plaintiffs can bring suit alleging that failing to enact congestion pricing violates this law.
• Americans with Disabilities Act (ADA): Delaying congestion pricing translates to a delay in accessibility improvements, potentially violating existing settlement agreements reached between MTA and disability advocates to address longstanding MTA noncompliance with the ADA.
• Environmental Assessment (EA): Residents of the CBD, people with disabilities, people with distinct vulnerabilities to traffic (e.g., asthma), businesses in the CBD, and other beneficiaries of positive environmental impacts identified in MTA’S EA for the CBDTP have standing.
• 2021 Green Amendment: The New York State constitution grants all residents the right to clean air, clean water, and a clean environment. Failure to implement congestion pricing violates this right.

The failure to implement congestion pricing has created a $15 billion shortfall in the MTA’s 2020 – 2024 Capital Program, which the New York State legislature did not replace before the end of legislative session on Saturday. Beyond MTA’s funding gap, the failure to implement congestion pricing will also forgo other critical benefits to New York City’s climate and transportation goals such as cutting carbon emissions, improving air quality, making mass transit more accessible and efficient, and reducing traffic injuries and fatalities region wide.

As a result of this pause, which is likely tantamount to a cancellation of the plan if not reversed promptly, MTA CEO Janno Lieber announced on Monday that MTA is shrinking its capital plan by billions of dollars. The Capital Program includes funds to improve transit expansion, accessibility, electrification, and state of good repair projects. Lieber also foretold the likelihood of service cuts to the public transportation system that serves around five million daily riders.

Other harms of failing to implement congestion pricing would include more traffic fatalities, which have increased in recent years for lower-income communities of color; even slower traffic for bus riders, currently averaging a slog of eight miles per hour; and further contribution to the transportation sector’s already large carbon footprint that comprises 15 percent of citywide emissions.

The Comptroller and the coalition of legal experts and potential plaintiffs will make further announcements after the MTA Board votes on the Governor’s proposal on June 26.

“Governor Hochul does not have the power to indefinitely postpone the congestion pricing program,” said Michael B. Gerrard, Professor at Columbia Law School. “The 2019 statute gives the MTA the mandatory duty to implement congestion pricing. It is illegal for the Governor to unilaterally cancel it.”

“Aside from being unjustified by any law, state or federal, Hochul’s use of her essentially clerical document-signing role to destroy a program mandated by state law is contrary to her duty under Article IV, section 3 of the New York Constitution to ‘take care that the laws are faithfully executed,’” said Roderick Hill, Professor at NYU School of Law. “Destroying a program mandated by the state legislature is the opposite of faithful execution.”

“Congestion pricing was signed into law in 2019 and the MTA has followed all appropriate steps for its implementation,” said Kathryn Wylde, President & CEO of Partnership for New York City. “Litigation will determine whether the governor has unilateral authority to impose an indefinite pause that effectively defunds the transit system.”