Last month, Governor Kathy Hochul startled New York City when she announced, barely three weeks before the June 30 start date of the congestion pricing program, that she was “pausing” it. Understandably, the people who fought for decades to charge people $15 per car to drive into core Manhattan were upset. But their plan in response to that move—to sue congestion pricing into existence—is ill-advised, as it would result in a program that could never gain broad public or political support.

Setting aside the clumsiness of her announcement, Hochul’s power, as the state’s elected chief executive, to pause congestion pricing shouldn’t be in question. Nor are congestion pricing advocates right to call her justifications invalid. Hochul said, reasonably enough, that “circumstances have changed” since her predecessor, Andrew Cuomo, signed the congestion pricing law five years ago, and “we must respond to the facts on the ground.” Those facts include a Manhattan whose office buildings remain, at best, operating at less than three-quarters their pre-Covid occupancy, and whose transit hubs and commuting corridors remain plagued by random violence.

Hochul’s broad power over the program comes from the state legislature itself, which enacted it in the spring of 2019 as part of that upcoming year’s budget. State lawmakers directed the Metropolitan Transportation Authority to create a tolling program with an “operation date” that “shall not be earlier than” December 31, 2020. Legislative intent matters: lawmakers could have directed the MTA to begin collecting tolls, say, between December 31, 2020, and December 31, 2024. But they didn’t; they built in open-ended flexibility, which Hochul has now seized upon.

Moreover, the legislature further avoided tying the MTA to any deadline by carefully wording its convoluted mandate for the MTA to raise a certain amount of money from the tolls. Under the law, a new “traffic mobility review board,” a sub-board of the MTA, “shall . . . recommend” a toll sufficient to “ensure that annual revenues and fees collected . . . provide for revenues . . . necessary to fund fifteen billion dollars for capital projects for the 2020 to 2024 capital program.”

Notice that the law doesn’t direct the MTA to start collecting these tolls during the capital program, which funds the MTA’s physical-infrastructure investments. Lawmakers could have required that the MTA start collecting the tolls before the calendar end of the 2020 to 2024 capital program, but they didn’t.

And no, it wasn’t an omission: the same section of the law directs the mobility review board to make its tolling recommendations to the MTA “no sooner than” November 15, 2020, “and no later than” December 31, 2020, “or no later than thirty days before a central business district tolling program is initiated, whichever is later.” Again, through this repetition, the state legislature made clear its intention to create a program that did not bind the MTA to a firm start date.

Though the plurality of its board members is appointed by the governor, the MTA is a legally independent public authority. Can’t it go ahead and implement congestion pricing without the governor’s say-so? No. By federal law, the state Department of Transportation, whose commissioner answers to Hochul, must sign off before the program can begin. No final signoff, no congestion pricing.

Congestion pricing advocates are dismissing the law’s language and the process it created as mere formalities. New York City comptroller Brad Lander said in mid-June that he and a coalition of experts and potential plaintiffs are “exploring all legal avenues, including multiple lawsuits, to resume New York City’s congestion pricing plan.” The Daily News chimed in: “Hochul has no right” to instruct her DOT commissioner “not to sign,” and if the commissioner doesn’t sign, the Daily News editorialized, then “someone should sue . . . to compel the signature.” Advocates also claim that the state constitution, which since 2021 has guaranteed New Yorkers the right to a clean environment, compels Hochul to act now—though by that logic, residents of Staten Island and the Bronx, who would see more traffic under congestion pricing, could sue to stop the program.

Any lawsuit trying to force congestion pricing into existence is thus likely to fail. Cuomo and state legislators enacted the program this way deliberately. They did not intend to compel the MTA to begin charging Manhattan drivers by a certain deadline, and they did not dismiss the MTA’s obligation to work within federal law, which requires a state DOT signoff. Nor is the signoff ministerial; the state DOT commissioner is not King Charles, compelled by custom to sign documents without agreeing with their purpose. Either the document is important and must be willingly signed, or it isn’t important and the federal government should amend its own law to stop requiring it.

Following the law is important for its own sake, but it also matters for the success or failure of congestion pricing. Congestion pricing is not a technocratic project, somehow magically removed from politics. It is a big deal for New York and the country: America’s first-ever program to charge drivers to enter a congested district. Yet, New York state residents oppose the program; voters approve of the governor’s pausing it by a two-to-one margin.

The program is unlikely ever to win public support if a court forces the governor to implement it against her will. Congestion pricing cannot succeed without an executive champion—one who firmly supports both the concept and the details, and who must be both engaged and empowered to support changing the details as needed, such as raising or lowering tolls or modifying the hours of toll collection. London’s congestion pricing program had strong executive backing from the city’s then-mayor Ken Livingstone. By contrast, Mayor Eric Adams has always been cool toward the idea. Governor Hochul was the only potential leader here. 

So how could congestion pricing advocates win back her support? Hint: public stunts shared on social media aren’t going to work. Nor is pinning every traffic death or subway delay on the cancellation of congestion pricing. Advocates (and the MTA itself) should stop hyperventilating that the MTA needs congestion pricing revenues right now to continue its physical-infrastructure investments.

Why not start by acknowledging that, on the merits, the governor is right? Now is not the time to charge drivers $15, 16 hours a day, to enter core Manhattan. (Nor is it time to charge them $3.75 in the overnight hours, when there is no congestion.) Why not propose a more modest plan of, say, an $8 or $10 car charge for peak-entrance hours only, and a charge that, for the first year, can be refunded if used as a credit on the mass-transit system? Why not propose that the fee be revenue-neutral for the first half-decade, with the proceeds offsetting the regional sales tax?

And then, why not ask the state legislature to vote explicitly on a standalone congestion pricing program with a firm start date, so that the governor, in publicly resuming support of the plan, has the firm backing of a majority of individual lawmakers on such a precedent-setting initiative? A congestion pricing plan snuck into a now five-year-old state budget was hardly the foundation for a sturdy plan.

For five years now, advocates have rejected all criticism and declared that it’s their way or the highway. They can continue this tack, calling Hochul a “climate criminal,” or they can help design a politically workable traffic-management program for New York’s post-Covid recovery.

Photo by Spencer Platt/Getty Images


City Journal is a publication of the Manhattan Institute for Policy Research (MI), a leading free-market think tank. Are you interested in supporting the magazine? As a 501(c)(3) nonprofit, donations in support of MI and City Journal are fully tax-deductible as provided by law (EIN #13-2912529).

Further Reading

Up Next