As reported in Part 18 of this series, it appeared that the TBTA (Triborough Bridge & Tunnel Authority) would start collecting congestion pricing tolls on Jan. 5 and sending the revenue to the New York Metropolitan Transportation Authority (MTA) for its capital program. For seven months, it had also been expected that Judge Leo M. Gordon, normally of the Court of International Trade in Manhattan and temporarily designated to hear the congestion pricing case in the District of New Jersey, would render a decision before the former June 30 date set for toll collection to begin. Gordon issued his ruling six months later, on Dec. 30, and both sides claimed a victory of sorts from what he said. As the dispute continued, it appeared that Gordon’s decision would impart new uncertainty about whether the tolls would be collected starting Jan. 5. That uncertainty is over.
Judge Gordon held a very long hearing Jan. 3. He found that the defects in the way Federal Highway Administration (FHWA) officials handled the case were not severe enough to stop the planned implementation of the toll. In his order, issued late Jan. 3, Gordon denied New Jersey’s Order to Show Cause and kept in force the schedule he had previously set. He also denied New Jersey’s request for “Clarification and/or Reconsideration” for a Temporary Restraining Order and Preliminary Injunction. The text of his decision has not been released at this writing. An informed source who attended the court hearing said that Gordon deliberated for four hours after oral argument had concluded, read his ruling from the bench about 8:00 PM, and and ended the proceedings at about 8:30 PM.
So, beginning just past midnight Jan. 5, vehicles entering the Congestion Zone south of 60th Street in Manhattan will be charged a base toll of $9.00 (although the “night rate” in effect at that time will be $2.25).
The hearing began at 3:00 PM Jan. 3, but news of Gordon’s decision was not released that day. Word was out early Jan. 4, as Anna Ley and Winnie Hu reported in The New York Times: “Starting [Jan. 5], most drivers will have to spend $9.00 to enter the busiest part of Manhattan. That much is clear. But almost everything else about New York City’s congestion pricing plan, the first of its kind in the United States, continues to be fiercely debated.”
The hearing over New Jersey’s request for an injunction that would prevent the toll from being collected, at least for now, came as a result of confusion over whether or not Gordon’s Dec. 30 ruling that found deficiencies in the way that FHWA officials had handled certain aspects of the case would halt implementation of the toll, as we previously reported. Landon Mion reported on Fox 5: “Judge Leo Gordon previously said that regulators must specify how much money communities in New Jersey would receive to reduce the potential effects of pollution from congestion pricing. However, he had not said whether the tolls could go into effect.”
The case will continue on the schedule that Gordon ordered in his remand to the Federal Highway Administration for further clarification concerning a disparity between the way Bergen County, New Jersey and the Bronx were treated when it came to mitigating environmental problems that could stem from vehicles using roads (in particular, the George Washington Bridge) in those areas so their drivers could avoid paying the toll. As Mion reported: “Judge Leo Gordon previously said that regulators must specify how much money communities in New Jersey would receive to reduce the potential effects of pollution from congestion pricing. However, he had not said whether the tolls could go into effect.”
Even though the tolls are coming, the controversy is not over. Both sides are continuing to say what they have been saying before. MTA head Janno Lieber was quoted as saying at a Jan. 3 news conference: “We’ve been studying this issue for five years, but it only takes about five minutes if you’re in midtown Manhattan to see that New York has a real traffic problem. I recognize there’s been a lot of controversy about this program and there are a lot of people who are concerned about the impact of congestion pricing. To them, I want to say the point is to make the city better for everybody.”
Immediately following Gordon’s ruling, Randy Mastro, attorney for the State of New Jersey, filed a Notice of Appeal to block the start of congestion pricing with the Third Circuit Court of Appeals, which sits in Philadelphia and handles cases from New Jersey, Pennsylvania and Delaware. Mastro paid the required fee, starting the Interlocutory Appeal process. It was assigned Case No. 25-1033, and the Notice was the 210th court filing in the case. On Jan. 4, the Third Circuit Court denied New Jersey’s emergency appeal. Colleen Wilson reported the result in the Record based in Bergen County, and on its website, at 3:30 PM Jan. 4, less than nine hours before the toll was scheduled to take effect: “Congestion pricing cameras will flicker on at midnight after the U.S. Court of Appeals for the Third Circuit rejected New Jersey’s last-minute appeal Saturday—making it the first congestion pricing program in the country.”
Longtime political operative David Wildstein commented on his site, the New Jersey Globe, as follows: “The swift rejection of Mastro’s appeal came without New York even being asked to submit a brief. Mastro’s defeat could be New York’s first legal victory over New Jersey, ending a winning streak that began when the U.S. Supreme Court went with New Jersey in an 1831 dispute over New York’s refusal to accept a subpoena. Chief Justice John Marshall wrote the opinion.“ Wildstein did not cite the case he mentioned, but it’s New Jersey v. New York, 30 U.S., 5 Pet. 284 (1831); a case concerning service of process in a border dispute between the states.
One point seldom mentioned throughout the pendency of the numerous cases about the toll is that motorists who wish to avoid paying it can come into Manhattan on public transportation, whether they use MTA New York City Transit subways or buses, MTA Metro-North Railroad, MTA Long Island Rail Road, New Jersey Transit trains and buses, numerous ferries (Staten Island Ferry, Seastreak, NYC Ferry, NY Waterway), private bus services (Academy, etc.), or a PATH train. PATH fares are increasing, too. Starting on Jan. 12, the base fare is going from $2.75 to $3.00. Tolls for bridges and tunnels operated by the Port Authority are also going up.
Gordon’s Dec. 3 Opinion
Gordon agreed generally in his 72-page opinion in Case No. 2:24-cv-03885 (download below) that federal highway officials had not acted arbitrarily or capriciously, or abused their discretion. Still, he did not agree with them completely, and he remanded the case on some issues to the FHWA, which again rendered it unclear whether toll collection will begin on the date set by the MTA.
In his opinion, Gordon presented the Background (at 5-11), discussed the Standard of Review (at 11-14), and then proceeded to the Discussion on the issues raised by the State of New Jersey and the other plaintiffs who oppose the planned toll (at 14-71). These issues concern Air Quality (at 15-35), Environmental Justice (at 35-47), Mitigation (at 47-53), Alternatives (at 53-62), and Participation, Coordination, and Public Comment (at 62-71). Like the opinions from New York that came from Judge Lewis J. Limon, Gordon’s ruling was thorough, and he granted partial Summary Judgment (finding no disputed issues concerning material facts) to the federal and New York State defendants on some issues. Unlike Limon’s decision, Gordon looked at the case more from a New Jersey perspective, and did find some factual issues that he believed warranted further effort by the FHWA and the parties.
Issues on Remand
Gordon sustained the FHWA process on eleven issues, and we will not report on them separately. Instead, we will report on the issues where he agreed with the plaintiffs. The first concerned some communities in Bergen County. He said: “Ultimately, Plaintiff’s arguments about the failures of the Final EA [Environmental Assessment] and FONSI [Finding Of No Significant Impact] with respect to Bergen County boil down to a call for more thorough and specified mitigation.” … “the court agrees with Plaintiff that the lack of specificity as to mitigation for some of these communities warrants further explanation, and if appropriate, reconsideration” (at 44-45).
When it came to mitigating conditions in communities south of Bergen County, Gordon said: “In the court’s view, Plaintiff’s contentions that the FHWA and Project Sponsors failed to provide specific mitigation commitments for New Jersey areas likely to suffer adverse effects are partially undercut by the regional mitigation commitments outlined in the Final EA and Final FONSI. However, Plaintiff raises some persuasive arguments that the FHWA appears to have acted in an arbitrary manner when it set specific place-based mitigation funding commitments for the Bronx but failed to do so with respect to New Jersey” (at 48). He also called for defendants to provide more-specific information about mitigation efforts in the Bronx (at 50), and for an explanation of apparently-disparate treatment between locations in the Bronx and in New Jersey: “Ultimately, the court concludes the Final EA and FONSI fail to provide a rational connection between the general mitigation commitments outlined and the specific resolution of any and all significant impacts that may result from the Program, whether those impacts are in New York or New Jersey. See 40 C.F.R. § 1501.6(c) (‘If the agency finds no significant impacts based on mitigation, the mitigated finding of no significant impact shall state any enforceable mitigation requirements or commitments that will be undertaken to avoid significant impacts.’ (emphasis added)). Accordingly, the court will remand this issue for further explanation, and if appropriate, reconsideration of the rationale providing for differing levels of mitigation commitments for the Bronx as compared to potentially significantly affected areas in New Jersey and the ultimate mitigation determination” (at 53).
The final issue on remand concerned a proposal for implementing tolls on the East River bridges that separate Manhattan from Brooklyn and Queens. Gordon had approved the thoroughness of the FHWA’s alternative analysis (at 61), but went on to say: “Despite this conclusion, the court is not ready to sustain the consideration of alternatives in the Final EA. Given the subsequent developments in the structure of the Program, it appears that the FHWA’s and Program Sponsors’ reliance on Objective 3 (i.e., the funding objective) has diminished in relative importance in the ultimate decisionmaking for the Program. As the court has already directed supplementation of the record to include these subsequent developments, the court shall allow the Project Sponsors and FHWA to directly address this issue in the first instance in the context of the whole record. As a remand is already in order on the issue of mitigation, the court will reserve judgment on Plaintiff’s challenge on the issue of alternatives. (at 61-62, footnote and citations omitted).
In his Conclusion (at 71-72), Gordon ordered a schedule for remand proceedings. The FHWA has until January 17 (three days before President Biden leaves office) to respond, the Plaintiffs (including the State of New Jersey) have until January 29 to comment, and Federal Defendants (including the FHWA) and the Defendant-Intervenors (TBTA and MTA) have until February 11 to comment. Comments will be limited to 15 pages.
Both Sides Claim Victory
Both sides found something to like in Gordon’s decision. A Dec. 31 report by CBS-TV in New York said: “In his more-than 70-page court document, the judge said regulators need to specify how much money communities in New Jersey will get to mitigate pollution from a possible increase in truck traffic. But despite that, there appears to be no consensus on the merits of congestion pricing and no one seems to agree on what Gordon actually ruled as far as when or if it can begin.” The report quoted a statement from MTA head Janno Lieber that said: “We’re gratified that on virtually every issue, Judge Gordon agreed with the New York federal court and rejected New Jersey’s claim that the Environmental Assessment approved 18 months ago was deficient. Most important, the decision does not interfere with the program’s scheduled implementation this coming Sunday, Jan. 5. On the two remaining issues where the Judge requested that the FHWA provide additional data—information that was not yet before the Court in this proceeding—we’re confident that the subsequent Federal actions, including the approval of the revised, reduced toll rates, did put those issues to rest.”
Gov. Kathy Hochul was quoted as saying: “Now that the judge has issued his ruling, the program will move forward this weekend.” Randy Mastro, the lead attorney for New Jersey, disagreed. CBS quoted a statement from him that said: “We welcome the court’s ruling today in the congestion pricing lawsuit. Because of New Jersey’s litigation, the judge has ordered a remand, and the MTA therefore cannot proceed with implementing the current congestion pricing proposal on Jan. 5, 2025. The judge determined that the Federal Highway Administration acted arbitrarily and capriciously in approving the MTA’s plan, that the FHWA’s decision provided no rational explanation of mitigation commitments, that New York changed its tolling scheme significantly after it gained federal approval, and that more consideration is needed before the current congestion pricing proposal may take effect.”
Down to the Wire
It was impossible for both sides to be correct about whether the machines that have been installed to deduct tolls from motorists’ E-Z Pass accounts (or bill other drivers at a 50% surcharge) would start doing their jobs on Jan. 5. Only ten days after two judges had refused to grant injunctions to anti-toll plaintiffs in cases heard in the Southern District of New York in Manhattan and While Plains, The State of New Jersey and other anti-toll plaintiffs asked Judge Gordon for an injunction to prevent the toll from being collected at this time. On Jan. 2, Larry Higgs reported in the Star-Ledger and on www.nj.com that the Plaintiffs’ attorneys filed on New Years Eve for a restraining order to prevent tolls from being collected while the remand before the FHWA is pending: “The attorneys said the federal approvals that allowed congestion pricing to proceed should be temporarily vacated until the issues that the judge sent back to the Federal Highway Administration are resolved.”
So, now that Congestion Pricing tolls will be collected starting Jan. 5. The date makes a difference, because the President-elect has said that he will attempt to kill the program after he takes office Jan. 20.
