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Congestion pricing countdown: Hochul has no authority to slow down the tolling program

“Congestion pricing countdown” is what we’ve put atop our all our editorials (this the 17th with the same headline) about the impending tolling program beginning with an editorial on May 7 of last year when the Federal Highway Administration (FHWA) accepted the MTA’s 4,000-page environmental assessment and the clock began ticking toward the start of imposing a fee on vehicles entering Manhattan south of 60th St.

The headline remains today because Gov. Hochul’s politically-motivated claim that congestion pricing has been paused has no legal bearing and the normal government processes continue, or at least they should. June 30 is still the date it is supposed to commence.

Congestion pricing was enacted into state law in 2019 (Vehicle & Traffic Law Article 44-C) that required the MTA to adopt a tolling plan. Hochul did not get the Legislature to repeal, modify or amend that 2019 law. And that law, not Hochul’s conversations at diners, sets state policy.

Our countdown began when the FHWA sent a May 5, 2023 letter to the the MTA, represented by Triborough Bridge and Tunnel Authority COO Allison de Cerreño; New York State, represented by the state Department of Transportation Chief Engineer Nick Choubah; and New York City, represented by city Department of Transportation Assistant Commissioner for Policy Will Carry.

Those same four parties, FHWA, MTA/TBTA, NYSDOT and NYCDOT also need to endorse the final approval of congestion pricing for the federal government’s tolling initiative for states and localities, called the Value Pricing Pilot Program (VPPP). That is the last step, as indicated in a joint statement Friday night from the MTA’s CFO Kevin Willens and General Counsel Paige Graves.

What seems to have happened is that Hochul has instructed state DOT, be it the current chief engineer, Stephanie Winkelhake, or Commissioner Marie Therese Dominguez, to not sign the document. Hochul has no right to do so and the DOT official holding the pen must not heed the request from the governor. If the approval is mere ministerial and non-discretionary, as we suspect it is, certifying that all steps have been completed (as they have been), the paper must be signed. Otherwise, someone should sue to obtain a writ of mandamus from the court to compel the signature.

If the matter is discretionary, then the policy has long been set, not by Hochul’s change of heart over coffee and a burger, but by state law. The law, not the inclinations of an individual, be it the governor or a chief engineer or a commissioner, is what controls.

Just like a county clerk cannot refuse to issue driver licenses to people without immigration documents or a local official cannot refuse to grant wedding licenses to same-sex couples, the law of New York State (to have congestion pricing) must be carried out.

Hochul’s apparently illegal inference however is causing the MTA to ponder its capital program, with $15 billion now being uncertain.

That $3.4 billion check for the next phase of the Second Ave. subway that Transportation Secretary Pete Buttigieg and Senate Majority Leader Chuck Schumer gave Hochul in East Harlem on Nov. 4 last year may have to be returned to Washington as New York cannot fulfill its part of the contract for the project.

But not to worry, as Hochul will lose and congestion pricing will happen.


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