Credit: Sarowar Hussain

We are now over three months out from when New York City was supposed to implement its congestion pricing program — a $15 toll for most drivers coming into Manhattan below 60th Street during daytime hours — before it was abruptly paused by Gov. Kathy Hochul.

The story is by now familiar: Hochul, worried about the Democratic wipeout on Long Island and the looming contests to decide the fate of Congress, sensed discontent around the program (or maybe was reminded forcefully of such discontent by prominent Democrats in Congress or, possibly, the White House) and took action. Now, we find ourselves in a period of extended legal and political wrangling as everyone basically waits to see what will happen.

There is one wrinkle to the whole congestion pricing popularity debate that I think has gone underappreciated: Conversations with multiple well-informed people — people who skim the news and care about NY civic issues — reveal that they simply did not know that the tolling funds were set aside for MTA infrastructure and service improvements. One friend of mine mentioned having thought that the revenue should go toward improving public transit before finding out only post-cancellation that it indeed was slated to do just that.

The comms plan focused on the wrong constituents

This seems like a pretty clear-cut communications failure on the part of the plan’s proponents. It’s a very different thing for voters to oppose what they perceive to be a random new toll — effectively a tax — that funnels some cash into a vague state fund and then out to who knows what, versus one that is earmarked for things like communications-based train control to enable more trains to run and run faster in the city’s lifeblood subway system.

Opponents of the plan have often pointed to a Siena College poll showing that 59% of likely voters supported a permanent scrapping of the program, to only 22% that supported implementation, a majority that held across party lines. They often fail to note that this poll was conducted between July 28 and August 1, practically an eternity ago in political opinion terms and before the current kerfuffle over Hochul’s cancellation, which was the trigger event for a lot of people to really find out what was at stake.

Last month, the MTA released a $68.4 billion five-year capital plan meant to, at base, keep the system in functional order long term. There are desired improvements, of course, but officials acknowledge that the bulk of this is to keep trains running without falling apart, and this basic upkeep includes $33 billion with no clear funding source. That’s in addition to the $15 billion in expected congestion pricing funds that have, for the time being, evaporated. These are enormous numbers, and so far we don’t have a clear sense of where the money’s coming from, even as the system that fundamentally powers the city’s economic and social life limps towards catastrophe.

Really, the forceful public argument has only been made in the aftermath of Hochul’s move, for a frustratingly simple reason: the consensus building for congestion pricing mostly focused on lawmakers, the people who could actually put the plan into effect. Yes, advocates certainly pushed the issue with the general public, but the particulars were left to be figured out afterwards as people pressed the concept in Albany, and once it was passed and signed, the urgency dissipated. It was the law, after all, so all the attention turned to figuring out how exactly the program was going to be implemented, what the exceptions would be, and so on.

Nobody honestly thought that the governor was going to attempt to suspend the program altogether, and thus very little energy was devoted to going whole-hog on public support post-passage. To my knowledge, there have been no subsequent polls specifically asking voters in New York their opinions on congestion pricing, but I’d be willing to bet that a contemporary poll would have the support much higher than it was in late July, now that voters are aware that they’re not getting new train cars, new elevators, more service.

Late last month, New York Judge Arthur Engoron (yes, this is the same judge that handled Trump’s civil fraud case and eventually ordered the former president to pay about half a billion dollars in penalties) allowed two separate lawsuits challenging Hochul’s cancellation of the June 30 implementation to go forward. One essentially revolves around the relatively straightforward principle that the congestion pricing scheme was created by law, and the governor does not have the power to simply decline to enforce the law as written.

The Hochul calculation

Hochul’s defense is that the program requires the state to issue certain approvals and execute agreements with the federal government that state agencies are empowered to do or not do at the direction of the governor, but that argument seems strained. These approvals aren’t discretionary but mandated, in the same way that the executive could not just decide to not implement new environmental standards passed into law. Engoron — who made headlines for a quip early on in the hearing about how much traffic he’d hit coming into Manhattan — seemed amenable to the plaintiffs’ arguments, appearing skeptical of the defense that the governor’s role here was anything but ceremonial and administrative. The other lawsuit is a bit more novel, leaning on the state’s recent constitutional amendment guaranteeing clean air and water and a healthful environment.

All of this is occurring against the backdrop of Hochul insisting that she actually does want to see congestion pricing through, and that this really is merely a pause while she considers a different structure (which really means a lower price point than the agreed-upon $15 toll) that should be in place by the start of next year. The big problem with that is that the amount of annual revenue — $1 billion — that the toll should produce is mandated by law, and so obviously changing the toll amounts could conflict with the law, or require getting rid of some of the existing exclusions.

As others have pointed out, there are also multiple federal lawsuits challenging not the governor’s pause but the underlying program itself, including one led by New Jersey Gov. Phil Murphy. That one is leaning at least in part on the argument that the congestion pricing plan didn’t do a thorough enough environmental review (part of a growing trend of using environmental laws to actually stop environmentally friendly projects) and a change in tolling structure could be more ammunition.

A traffic nightmare

This all means that even a relatively minor change to the program could throw up multiple procedural hurdles that might conceivably delay implementation significantly. It’s also not really clear what process would lead to a new price, beyond just what Hochul feels is politically palatable. The $15 toll was decided on after extensive study and deliberation, and just undertaking that process again would take months if not years.

So now we’re here, closing in on the end of the year with no congestion pricing plan in place and no clear timeline for when or what will be decided; will Hochul come up with a new number before Engoron takes further action? Will she be forced to implement the plan as is? Will one of the federal lawsuits toss out the plan completely? Who knows. Meanwhile, the indefinitely paused effort has already cost a cool $1 billion to plan and set up, while the MTA is forced to move forward scrapping plans for an additional $1 billion in annual revenues. Whatever you want to call this, it’s a mess.

Felipe De La Hoz is an immigration-focused journalist who has written investigative and analytic articles, explainers, essays, and columns for the New Republic, The Washington Post, New York Mag, Slate,...

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1 Comment

  1. i can understand the need to fix the bottleneck below 96th st. what i approved is the “fabolous$15” that toll as every other toll will be passed to the commutters. i travel below 96th st for doctors appts few times a week(sometimes the whole week). that toll cost will be past down to me. when in any other company mgmt its not producing i believe they would cut or fire the executives; instead of passing the buck to the hapless consumers.

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