Roderick M. Hills, Jr. is the William T. Comfort III Professor of Law at New York University Law School.
When Mayor Bloomberg failed in 2008 to persuade the state legislature to give New York City the power to toll roads and bridges into the Manhattan Central Business District, the fight for a congestion charge appeared lost. Behind this perception was the assumption that New York City did not already have the power to enact congestion fees.
In my view, this assumption is false. Section 1642(a)(4) of the NY Vehicle & Traffic Law already authorizes cities with a million residents (a.k.a. New York City) to impose “tolls, taxes, [and] fees … for the use of the highway or any of its parts where the imposition thereof is authorized by law.” As I argue in the latest issue of City Law [PDF], this provision is best construed to delegate to New York City the power to toll its roads and bridges, so long as the City Council enacts a local law defining the toll. Such a local law would satisfy Section 1642(a)(4)’s requirement that “tolls, taxes, and fees” be “authorized by [local] law.”
In short, New York City does not need Albany’s permission to pass a “congestion fee” ordinance. It already has the power to do so without further state legislation.
Is there any argument against this straightforward reading of Section 1642(a)(4)? One might respond that those last three words — “authorized by law” — mean “authorized only by state law.” But this reading makes little sense. Reading the statute to require an additional state law before New York City may toll its roads effectively reduces Section 1642(a)(4) to a tautology, essentially reading it to say that “state law gives New York City the power to toll roads if state law gives New York City the power to toll roads.” By contrast, reading the statute to allow NYC to impose congestion fees when “authorized by either state or local law” construes the statute to place a familiar “non-delegation” limit on local officials’ power, by requiring the mayor or commissioner of transportation to secure a fee schedule from the City Council before they impose tolls on drivers.
Does this argument mean that New York City’s enactment of a “congestion fee” ordinance would not face legal challenges? Unfortunately, no: For one thing, opponents of congestion pricing would almost certainly litigate to protect the status quo. Moreover, notwithstanding the straightforward language of the Vehicle & Traffic law, many prominent attorneys with expertise in local government law are skeptical about the idea that New York City can act alone on congestion fees. What explains this skepticism?