Congestion pricing lawsuits test limits of New York's ‘green amendment’

NEW YORK — Two of New York’s biggest environmental policies are on a collision course.

Foes of congestion pricing, the long-awaited plan to reduce traffic in Manhattan by charging drivers, are aiming to block the tolls using a constitutional amendment designed to protect the environment.

Ironically, the tolling plan is intended to help the environment by taking polluting cars off the road in New York City while raising money to pay for billions of dollars in upgrades to the Metropolitan Transportation Authority’s sprawling bus and subway network.

Nevertheless, one of the biggest wild cards in several lawsuits challenging the proposed tolls is the 2021 “green amendment” voters approved to ensure every New Yorker has a state constitutional right to clean air, clean water and “a healthful environment.”

Three lawsuits challenging the congestion pricing plan argue it would actually exacerbate air pollution in high-smog areas by encouraging new traffic patterns that would create vehicular bottlenecks in those neighborhoods.

“How is that not going to be a violation of the green amendment?” said Alan Klinger, an attorney who is representing toll foes, including Staten Island Borough President Vito Fossella and the United Federation of Teachers. “Because it is certainly going to affect the quality of the environment for these communities.”

The pending legal fights give federal courts an early crack at defining the scope of the rights in the green amendment. And that could spell trouble for the MTA, which is set to finalize its tolling plan at a Wednesday board meeting.

The daytime tolls — $15 for cars and more for big trucks — are expected to improve the region’s overall air quality. But a state and federal environmental assessment shows congestion pricing will change traffic patterns as drivers, particularly commercial truck drivers, try to dodge the tolls by taking circuitous routes around Manhattan — potentially snarling traffic and increasing air pollution

These routes include parts of Staten Island, the South Bronx, Chinatown, the Lower East Side and places along the FDR and other peripheral highways — areas already considered “environmental justice communities,” which means pollution there is supposed to get extra scrutiny.

“The law says that environmental justice communities are supposed to get special attention and protection, not be treated worse,” Klinger said.

Three of the five cases challenging the MTA’s tolling plan and a federal environmental review — two in New Jersey federal court and three in New York federal court — focus on these sorts of changes. And all three New York cases raise the green amendment issue.

So far, the MTA and federal transportation officials have not dealt directly with the green amendment issues in court, though their mandatory environmental assessment released last year devotes nearly 500 of its thousands of pages to “environmental justice” communities.

“The findings of the environmental assessment — and in particular, the project’s substantial environmental benefits — reflect the project’s consistency with the green amendment,” MTA spokesperson Joana Flores said in an email.

More broadly, the state, which effectively runs the MTA, has cited reducing overall air pollution as among the reasons Albany lawmakers supported congestion pricing in the first place. Plus, the state has said, there are plans to deal with some of the negative local impacts, including installing charging stations for electric trucks, monitoring traffic conditions and putting in plants to mitigate air pollution from changes in traffic patterns.

Because there is so little case law about New York’s green amendment, it’s hard to predict how courts will view the claims about congestion pricing violating residents’ environmental rights.

“Whether one agrees or disagrees with that, their framing is not coming out of left field in terms of what arguments they are making,” said Maya K. van Rossum, an environmental advocate who coined the term green amendment.

She said the legal lines about where environmental rights begin and end will be drawn over time, just as courts have long wrestled with freedom of speech and religion cases.

Jack Lester, an attorney representing New Yorkers Against Congestion Pricing Tax and other plaintiffs challenging the tolling plan, said the green amendment and congestion pricing don’t have to be in conflict, they just are because of the way the MTA is going about the tolling plan.

“It’s one of those governmental, perhaps well-intentioned policies that just went off the rails, no pun intended, in how they tried to implement it,” he said.

So far, several of the recent green amendment cases in New York have presented more obvious claims, according to a review of the green amendment cases being tracked by Pace University’s law school.

One case involved a landfill, for instance.

But there have been more surprising uses, too. A lawsuit to block solar energy subsidies and a lawsuit to ensure Buffalo puts fluoride in its tap water both cite the green amendment.

It’s still possible the green amendment issues don’t get ruled on by a judge if the cases settle or if either New York or New Jersey challengers win before the tolling starts.

The judge in the New York cases is leaving complex constitutional questions for later, after the court rules on more basic questions about whether the environmental reviews were done properly. Traditionally, courts defer to bureaucrats and elected officials on those kinds of regulatory matters.

But the green amendment claims introduce a constitutional twist and uncertainty.

Federal judges in New Jersey and New York are expected to hear arguments in and rule on the more basic legal questions by mid-June, which is when the MTA wants to start tolling. That means even if the MTA wins on the more basic legal issues, the green amendment issue could be left unsettled, giving New York toll foes another bite at the apple.

They could, for instance, seek an injunction to block the tolls before or even after they begin by claiming the tolls violate neighborhood residents’ constitutional rights.

A ruling in one case last April involving a residential project in Chinatown, suggests some courts won’t want to give foes of projects another bite at the apple in cases where more traditional environmental arguments failed. The judge wrote that she was hesitant to “create a brand-new route to challenge developments on an environmental basis” using the green amendment.

But that ruling came after years of previous attempts to block the projects proved unsuccessful.