Donald Trump has made no secret of his plans for New York’s congestion pricing program. In a social media post in May, the Republican presidential candidate promised that he would “TERMINATE Congestion Pricing in my FIRST WEEK back in Office!!”
Trump doesn’t always deliver on his promises, but he could make good on this one. If he is elected in November, there are at least three ways that he could kill the program or hold it up for years. Even further delay would be catastrophic for the budget of the Metropolitan Transportation Authority.
Does Governor Kathy Hochul have a plan to stop him? She unilaterally paused the program in June, a move now challenged by two lawsuits. Speaking at the Democratic National Convention last week, she said that she wants to unveil a replacement around the new year.
But that might be too late.
“If congestion pricing is not flipped on by the inauguration, then it would be very vulnerable to a new Trump administration,” said Michael Gerrard, a professor at Columbia Law School who has helped coordinate the lawsuits against Hochul.
A new Trump administration, which would begin on January 20, could halt the program by refusing to give final sign-off, revoking its environmental approval, or conceding to a lawsuit seeking to delay it.
ochul’s office did not answer questions on how it plans to stop a potential Trump administration from axing the program. Spokesperson John Lindsay said only that the governor “is committed to funding the MTA Capital Plan and is working with partners in government on funding mechanisms while congestion pricing is paused.”
One way to minimize the chance of Trump derailing the program? Start it before January 20.
“It would be very difficult for the Trump administration to undo it if it’s already up and running,” Gerrard said.
That’s especially true if the toll money is already being used, said Fred Wagner, former chief counsel of the Federal Highway Administration and an expert in transportation law.
“If you have approval in your pocket, and you start construction” on the projects that congestion pricing is supposed to fund, he said, “it’s much more difficult for a federal agency to, at that point in time, rescind approvals or rescind money.”
Hochul will need the legislature’s sign-off to make significant changes to the program. Some legislators have expressed openness to modifications, such as lowering the planned $15 toll, but reaching consensus might not be a speedy process when legislators return to Albany in January from their half-year recess.
“I do not believe any changes to congestion pricing that require legislative action would pass quickly,” said Senator Liz Krueger, chair of the chamber’s powerful finance committee and a strong supporter of congestion pricing.
Failure to implement congestion pricing would likely leave the MTA short of over $16 billion dollars for needed transit improvements and spell the end for the air quality and traffic reduction benefits that were slated to come to Manhattan and the New York City region.
Hochul has declined to offer details on how she plans to fund the MTA in the absence of congestion pricing or to commit to achieving the program’s promised reductions in traffic and greenhouse gas emissions.
A second Trump administration would have at least three ways to try to kill the program.
1. Refusing to sign the document authorizing the program.
For congestion pricing to take effect, a final approval document must be signed by the federal Department of Transportation, the state Department of Transportation, the MTA, and New York City. Hochul has ordered the state transportation commissioner, Marie Therese Dominguez, not to sign this document, and the feds have said that they won’t take action before New York does.
One of the lawsuits against the Hochul administration requests that the judge order Dominguez to sign the document, but it’s unclear if it will succeed. If the status quo were still in place when Trump took office, it’s likely that his Department of Transportation would simply refuse to sign the document, killing the program at least until 2029, when a new president would take office.
“I could easily envision the federal [Department of Transportation] withholding its signature so congestion pricing wouldn’t start,” Gerrard said.
The Trump administration could face a lawsuit over this decision. In that case, it would have to articulate why it changed positions after the federal government already approved the program under Biden.
2. Demanding a more detailed environmental study — and delaying it.
If congestion pricing still hasn’t been implemented when Trump takes office, he could trash the 868-page environmental assessment in which the federal Department of Transportation determined that congestion pricing wouldn’t harm the environment, a necessary element of getting the project approved.
Instead, he could order the department to prepare a longer and more rigorous study known as an environmental impact statement. (Yes, 868 pages was the short version.) This could delay congestion pricing by months or even years, since presidents of both parties have refused to approve environmental impact statements as a strategy to block projects they didn’t like.
Trump’s first-term delay in approving the Gateway train tunnel under the Hudson River is one notable recent example, Wagner said. The environmental study was completed in May 2018 but not approved until May 2021, months after Trump left office, despite protests from Democrats demanding that his administration move faster.
Revoking an environmental approval isn’t a common practice, but has happened in the past.
If Trump took this approach, New York state or the MTA could sue to try to reverse the decision and reinstate the shorter study. Experts were split on which side would prevail.
“Revoking approval would require some evidence of a prior mistake in the several thousand pages of the environmental assessment,” said Roderick Hills, a law professor at New York University who is participating in one of the lawsuits against Hochul. “I don’t see how the Trump administration would have any such power.”
Wagner was more bullish on Trump’s chances.
“It’s very rare for a governmental decision to do more environmental analysis to be subject to challenge and reversal,” even if that decision appears to be in bad faith, he said. “The government will never lose that case.”
3. Switching sides in a lawsuit seeking to kill the program.
The state of New Jersey is currently suing the federal government in an attempt to delay congestion pricing. The Garden State’s lawyers claim that the potential environmental harms to New Jersey weren’t fully studied in the environmental report and are asking the judge to order a more rigorous review by the Department of Transportation.
The Federal Department of Justice is opposing this lawsuit and defending congestion pricing in court. But Trump could order the department to stop opposing New Jersey. Instead, a Trump administration could seek a settlement where it would submit to New Jersey’s demand for a more thorough study, effectively putting the program on ice.
The MTA, which is also a defendant in the case, might object to this move, but ultimately “it would be up to the court” whether to allow the settlement, Gerrard said.
If Trump wins, legislators could rush to approve a modified version of congestion pricing when they return to Albany in January. But even if they do, it’s not guaranteed that the Biden administration would be able to approve it before the switch, said Kathryn Wylde, CEO of the business group Partnership for New York City and a vocal supporter of congestion pricing.
“If there’s a change in regime, very few decisions are made in Washington in those last few months,” she said. “It’s dangerous to assume that we’ll be able to move forward at the end of the year.”
