Two lawsuits call Gov. Hochul’s congestion pricing pause ‘unlawful’

Environmental groups, New York City residents and public transit riders have filed two separate lawsuits challenging Gov. Kathy Hochul’s decision to pause the nation’s first congestion pricing program.

On Thursday, July 25, Riders Alliance, Sierra Club and New York City Environmental Justice Alliance filed a state lawsuit against Hochul, the New York State Department of Transportation, the Metropolitan Transportation Authority and the Triborough Bridge and Tunnel Authority. On the same day, City Club of New York, a not-for-profit corporation promoting good governance and transparency in the Big Apple, filed a similar lawsuit.

Although the two lawsuits differ in their main arguments, both claim the governor overstepped her authority by unilaterally stopping congestion pricing, which was directed by the state legislature.

“Gov. Hochul’s actions blocking congestion pricing are plainly unlawful and an egregious example of executive overreach,” Andrew Celli Jr., an attorney with the law firm representing plaintiffs in the City Club of New York case, said in a statement. “This lawsuit upholds the law as written and seeks to ensure that all public officials act within the scope of their authority. No one, not even a governor, is above the law.”

Governor and state DOT lack authority

The lawsuit filed by residents claims that the Triborough Bridge and Tunnel Authority has the sole authority over the congestion pricing program.

Congestion pricing became a legal directive in 2019 through the Traffic Mobility Act. Plaintiffs in the case argue that the plain language of the act granted sole authority over all matters of congestion pricing to the Triborough Bridge and Tunnel Authority in order to avoid politicization of the program.

As a way to circumvent the limitations of her power, Hochul ordered the state DOT to withhold its signature from a Federal Highway Administration tolling agreement. The commissioner, who was appointed by the governor, followed the directive.

The lawsuit claims that this refusal to sign the FHWA agreement is the only thing that prevents the implementation of congestion pricing. In the event the state DOT signs the agreement or its signature is deemed unnecessary, “congestion pricing would immediately become a reality,” the lawsuit states.

“Rather than being ‘bold’ or ‘demonstrate leadership,’ the governor’s arbitrary action in ordering her state DOT commissioner not to take the ministerial step of signing the FHWA road-tolling agreement is ultra vires, violates separation of powers by, in effect, overriding the Legislature’s expressed directive and is in violation of the Traffic Mobility Act, which grants sole authority to implement (congestion pricing) to the TBTA and the MTA and which mandates that (congestion pricing) proceed,” the complaint states.

Violation of state environmental law and rights

The lawsuit filed by public transit riders and environmental groups claims Hochul’s decision to pause congestion pricing violates state environmental laws and the state constitution.

In the same session that passed the Traffic Mobility Act, New York state lawmakers also passed the Climate Leadership and Community Protection Act. The law requires the state to reduce greenhouse gas emission by 40% by 2030 and no less than 85% by 2050.

According to the lawsuit, the climate act requires the executive branch to ensure its decisions help achieve those goals. Congestion pricing is identified as a key component to the strategy to address climate change. Therefore, the lawsuit argues, Hochul’s decision to block the program violates the Climate Leadership and Community Protection Act by not fulfilling her obligation to reduce certain emissions.

Plaintiffs also argue that Hochul violated the state constitution. In 2021, 70% of New York voters approved of an environmental rights amendment to the state constitution. The amendment simply states that “Each person shall have a right to clean air and water and a healthful environment.” The lawsuit claims the governor’s abrupt pause of congestion pricing “deprives the people of New York of the air quality protection that the Legislature provided in the Traffic Mobility Act.”

“The court should declare the governor’s action unlawful and vacate her decision,” the lawsuit states. “The people of New York City deserve to breathe.”

Comptroller’s legal charge

Lawsuits challenging Hochul’s congestion pricing pause are being led by New York City Comptroller Brad Lander.

Just one week after Hochul announced her decision to pause congestion pricing, Lander announced a broad coalition of legal experts working to fight that decision.

The comptroller announced a team of attorneys from Earthjustice, Mobilization for Justice and Emery Celli Brinckerhoff Abady Ward & Maazel, which entered into a joint defense agreement to explore legal action. Emery Celli is leading legal action on the basis of the 2019 law that mandates congestion pricing implementation. Earthjustice is leading legal action on the basis of New York State’s Climate Leadership and Community Protection Act 2019.

The above lawsuits complete a trio of planned lawsuits. On July 17, the first lawsuit was filed on behalf of bus riders and bus drivers. Attorneys are also considering a fourth class-action lawsuit for straphangers with disabilities who are affected by the lack of accessible station improvements. LL