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Who's covering whose ass?
Any lawsuit against Gov. Hochul's 11th-hour abandonment of congestion pricing may depend on the federal government giving its final approval for the program — but the Biden administration is taking cues from New York on next steps, federal officials told Streetsblog on Wednesday.
President Biden's U.S. Department of Transportation has so far withheld a key step in the congestion pricing process — its sign-off of the MTA's environmental review of the plan and a document permitting the agency to enter the Federal Highway Administration's "Value Pricing Pilot Program," which the state and city departments of Transportation must sign in order for the MTA to charge tolls on city- and state-owned roads.
FHWA officials were ready to approve the review and advance the program until Hochul's shocking announcement last week, but are now holding off, a rep for the agency said.
"Congestion pricing is a state-led project. U.S. DOT’s role is the standard environmental review approval," the spokesperson said in a statement. "FHWA was ready to take the next steps. Given the public statements by the governor, FHWA awaits a formal notification from the state on next steps."
National Democrats reportedly had a role in Hochul's decision-making in the week since she announced the toll's "indefinite delay." The Times reported that Hochul's reversal came after pressure from House Rep. Hakeem Jeffries, the Democratic Minority Leader. Hochul spent the day before her announcement at the White House with Jeffries and Biden for an event about border security.
If the FHWA issued its final approvals, the congestion pricing hot potato would shift to Hochul — and Mayor Adams — to have their DOTs sign. City, state and MTA officials spent the last few weeks reviewing drafts of the VPPP agreement, but have yet to receive a final document for their John Hancocks, a source within city government told Streetsblog.
Hochul's office did not respond to a request for comment.
Potential litigants against the governor's "pause" of the June 30 launch of congestion pricing may hinge their case on Hochul's refusal to sign by arguing that the state law that authorized congestion pricing in 2019 compels the MTA, state and city to follow through on the plans to charge the tolls, according to City Comptroller Brad Lander, who is leading the judicial charge.
Lander told reporters on Wednesday that he believes the feds are ready to issue and sign the documents. The comptroller hinted that Hochul's reversal may have affected their decision-making.
"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 going forward, it could be done on time for June 30 implementation."
Hochul spent the day before her announcement at the White House with Jeffries and Biden for an announcement about border security, but if congestion pricing came up, Biden did not explicitly tell her to put the kibosh on the plan, according to a source knowledgable of the White House's thinking on the issue.
"My understanding is that they weren't aware in a meaningful way that Hochul was going to do this, and that there was no direction from the White House as it relates to congestion pricing," the source said.
"This is not on the list of projects that the White House is focused on. They see it as a state issue."
In explicitly deferring to Hochul, FHWA officials may have made their role irrelevant to litigation, which would focus on the governor's decisions and decision-making process. They could also be giving legal cover for Hochul to say the program can't move forward regardless of her position.
On Wednesday, Lander put forward several possible legal strategies for pricing supporters, pledging to file suit at the start of July if the MTA fails to launch the tolls as planned. Other options include suing under state climate laws, the federal Americans with Disabilities Act or on behalf of the constituencies who the MTA's environmental assessment determined who benefit from the tolls.
The VPPP and EA sign-off remain "an open issue," said attorney and law professor Michael Gerard, who is advising Lander on the potential suit.
"It may be resolved in the next few days on its own," Gerrard said of the approval documents. "We would be prepared to sue ... depending on what develops over the next couple weeks."
Litigation may last months. That and Hochul's "delay" could kick the FHWA's final approval to next year, raising the possibility that the fate of congestion pricing rests in the hands of President Donald Trump, who has repeatedly said he would block the tolls.
"What we want is for the Biden administration, the Hochul administration and the Adams administration to implement congestion pricing now, long before November and long before next year," Lander said. "We want it to be the actuality of New York State long before we have to address the questions of the different presidents.
"Do I think that part of the risk is that if the governor continues in this disastrous pause, and it doesn't move forward, that it will become much harder to ever implement in the future? Absolutely," he added.
"Our goal is not protracted litigation. Our goal is to enforce the law of the state of New York and get it done right now and long before November."
Additional reporting by Gersh Kuntzman and Dave Colon
