Congestion Pricing Dispute Keeps Courts Busy

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Former Lackawanna Coalition Chair Albert L. Papp often refers to the river that physically divides New Jersey and New York as the “Hudson Ocean.” The ongoing dispute over New York’s congestion pricing plan to impose tolls on vehicles entering Manhattan’s Central Business District (CBD), defined as south of 60th Street, seems to affirm Papp’s moniker as a border dispute between the two states
heats up in federal courts in New Jersey and New York. The plan would impose a toll of $15.00 per day on passenger vehicles entering the tolling zone between 5:00 A.M. and 9:00 P.M. on weekdays, and between 9:00 A.M. and 9:00 P.M. on weekends. The toll during the overnight period would be $3.75. Buses and trucks would pay more, vehicles coming across a bridge or tunnel that has a toll on
it would receive a discount during “daytime” hours, and there would be “per ride” surcharges of $1.25 for taxis and $2.50 for other “for hire” vehicles to come into the zone.
Gov. Phil Murphy has been a vocal opponent of the plan, and the State of New Jersey has challenged it in the federal court for the District of New Jersey. The primary defendants are federal highway officials, who issued the Finding of No Significant Impact (FONSI) and the Environmental Assessment (EA) that New Jersey is challenging, alleging that the reports do not comport with environmental law and that they violate proper administrative procedure. The State is not represented by the Attorney General’s office, but by Randy Mastro, a famous litigator from King & Spalding an Atlanta-based firm with a national reputation. Mastro is with the firm’s New York office.
The proceeds from the toll would be dedicated for capital projects at New York’s Metropolitan Transportation Authority (MTA), with 80% for city subways and buses, and 10% each for the Long Island Rail Road and Metro-North. The MTA and its affiliate, the Triborough Bridge and Tunnel Authority (TBTA), which would
use the E-Z Pass system to collect the tolls, are also defendants.
About 45 groups in New Jersey and New York have asked the judge for permission to file amicus curiae (“friend of the court”) briefs in support of the proposed toll. Along with the defendants, they argue that the Federal Highway Administration (FWHA) and other officials acted properly by conducting extensive outreach, complying with environmental statutes, and giving New Jersey due consideration when considering how much to charge and during which hours. In contrast, only Bergen County has asked to file a brief supporting the State’s
position, because it claims that the traffic and environmental impacts will be worse there, and Fort Lee Mayor Mark Sokolich (of “Bridgegate” fame) has also been given amicus status. He and some town residents have their own case going against the tolling plan, but the judge did not allow it to be consolidated with the State’s case.

There are also three cases pending in federal court for the Southern District of New York, in Manhattan. They were filed by elected officials outside Manhattan and anti-toll organizations, including unions representing public employees. These cases have not advanced as far as the case filed by the State of New Jersey. At this writing, there have been about 200 court filings, and dozens of lawyers have participated in the case so far. Still, both sides have asked for summary judgment, which means they believe that the record does not
leave any dispute over the facts, so there is no need for a trial. It’s up to Judge Leo M. Gordon, who is normally assigned to the Court of International Trade, a specialized federal court in New York City, to make the decision, which is expected late in the spring.
The MTA has already cancelled a number of construction projects, saying that the agency depends on the money from the tolling program to pay for them. Until the tolling program is approved, if it is, these projects will have to wait. The Lackawanna Coalition submitted two suggestions during the public comment period. Transit and commuter buses are exempted from the toll, and the Coalition suggested that all buses (including intercity buses) that take passengers into the designated Central Business District also be exempted, since they also remove automobiles from the road. New Jersey also argued that it is unfair to deprive New Jersey of any of the revenue that the program is slated to bring in. The Coalition suggested that, when an opportunity arises to do so, the parties should renegotiate the deal to give a share of the money, which would be dedicated to helping pay for capital projects used for providing trains to Penn Station and buses to Port Authority, to New Jersey Transit. Maybe that would bring some peace to the border dispute now raging across the “Hudson Ocean.”
For more-detailed coverage, see the series by the author, scheduled to start running in mid-March in Railway Age on its website,

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