An electronic MTA sign in Penn Station | AP Photo Why congestion pricing might be delayed

In Transportation Secretary Elaine Chao’s offices last April, Metropolitan Transportation Authority chairman Patrick Foye, New York City Transportation Commissioner Polly Trottenberg, and several aides had an urgent question for Chao’s deputies — an answer that could determine the fate of one of New York's most ambitious transportation projects in decades.

Ten months later, that answer still hasn’t arrived.


In pursuit of federal approval for the nation’s first congestion pricing scheme, the one officials suggested would launch in January 2021, the question was this: Should New York State and New York City conduct a quick “environmental assessment” or a full scale “environmental impact statement,” a process that could take years?

Federal officials didn’t provide a definitive answer in that meeting, nor have they since.

That haziness puts MTA officials, and the massive system-wide rehabilitation plan whose funding is reliant on congestion pricing, in a serious bind.

Should officials have to pursue that more intensive environmental impact statement, central business district tolling is unlikely to start in January 2021. Should they pursue an abbreviated review, it’s also possible congestion pricing won’t begin in January, because those abbreviated studies take time too, and their very abbreviation can prompt lawsuits alleging inadequate review, creating more delays.

The 2019 state budget authorizing congestion pricing mandated that it begin no earlier than Dec. 31 of this year. The January 2021 date was the "understood goal" at the MTA for launching congestion pricing, someone familiar with the process said.

It was the understood goal externally, too.

"My understanding of the aspirational launch date is January 1, 2021," said Nick Sifuentes, executive director of the Tri-State Transportation Campaign. "That's the date that's always casually been bandied about by the powers that be."

The source familiar with the process said, “I’m more and more thinking there’s no way it’s going to be that in January of 2021, they start charging money."

The plan calls for tolls on drivers entering Manhattan south of 60th Street. The first-in-the-nation congestion pricing scheme is supposed to support $15 billion in debt for the MTA’s $51.5 billion reconstruction plan, which encompasses everything from subway resignaling to dozens of new station elevators.

Were the MTA to start the environmental impact statement process today, it would be "extraordinarily difficult" to complete it by January 2021, said Columbia University law professor Michael Gerrard, an expert in environmental law.

He pulled up some statistics to support his case.

For agencies like the MTA that have conducted environmental impact statements with the Federal Highway Administration, it took an average of 2,691 days to complete the process, Gerrard said, citing a report by the National Association of Environmental Professionals on reviews concluded in 2018. Those processes largely involved highway construction.

The shortest time any agency completed such a review with any agency in the federal government was 637 days.

The Trump administration has said it wants to speed up the environmental review process generally, but it has also dragged its feet when it comes to completing a review for the region’s most important infrastructure project — a new tunnel under the Hudson River.

There are other issues, too.

If the MTA does need to do a full scale environmental review, it’s not clear how it could do so without including the cost of tolls to enter Manhattan south of 60th Street, since the tolls will determine driver behavior and environmental impacts like air pollution.

The governor, who effectively controls the MTA, punted that question to an MTA committee that has yet to be appointed, but that he will also effectively control. By law, that panel is not allowed to reveal what the tolls will be until November 15 of this year — after Election Day.

The MTA could work with a superficially high toll estimate to ensure they capture all potential impacts, but that theoretical toll would probably garner bad headlines officials would rather avoid.

Should the agencies opt for the less intensive environmental assessment, they could face a lawsuit.

Arthur Schwartz is seen as a legal specter haunting the MTA. The Manhattan attorney’s litigation delayed the implementation of the busway on 14th Street, citing concerns about environmental reviews.

In an interview, Schwartz said the congestion pricing plan was likely to spark some sort of litigation — possibly from parking garage owners in the central business district whose business will be impacted by the new tolling scheme.

“The other angles could be that there was something discriminatory about it, if it impacted more on people of color,” he said. “I’ve heard people kicking that idea around.”

In a statement, MTA spokesperson Abbey Collins said the agency is preparing for the possibility of either kind of environmental review, and that the agency's work remains “on schedule.”

But when POLITICO asked a U.S. Department of Transportation spokesperson if his agency had settled the environmental review question yet, he said it is “still to be determined.”

Some suggest the MTA quite simply played its cards wrong. From the very beginning, two sources said, some officials have argued the MTA should just adopt the most conservative option — the full scale environmental impact statement — and begin it immediately, since federal officials generally favor a more conservative approach and would probably have signed on.

"Some of us thought we shouldn’t just wait for guidance we didn’t think would come, and do the [environmental impact statement] and just get going, maybe on an expedited process," one knowledgeable source said.

That didn't happen either.