--:-- Sean Rameswaram: Welcome to Today Explained. I'm Sean Rameswaram.
--:-- [Theme music fades out]
--:-- Sean Rameswaram: Today, New York City wants to be the first in the nation to implement congestion pricing to charge people for driving during peak hours. New Jersey says fuhgeddaboudit. Let's dive in.
--:-- Stephen Nesson: I am Stephen Nesson, transit reporter at New York Public Radio, WNYC, and my stories appear on the website Gothamist.
--:-- Sean Rameswaram: Stephen, this is a big deal. This is massive. Because New York City will be the first city in America to charge drivers to drive to enter a crowded part of a city.
--:-- Stephen Nesson: We are setting the standard right here in real time for how we can achieve cleaner air, safer streets, and better transit.
--:-- Sean Rameswaram: It was very, very difficult for New York City to do this. This day was coming for a long time, but it was a thoughtful, methodical process.
--:-- Stephen Nesson: People have tried it for years and they failed. But now we are closer than we've ever been to implementing congestion pricing.
--:-- Sean Rameswaram: Tell me about the challenges in the past. How has this gone for New York City, for New York State previously?
--:-- Stephen Nesson: Well, you know, Mayor Bloomberg tried something like this. He even wanted to toll the East River bridges that funnel vehicles into downtown. And those bridges are completely free, which is crazy to any urban planner.
--:-- Sean Rameswaram: But nobody has the political will. We should say the guts to charge drivers. It would just be, you know, political suicide to do this.
--:-- Stephen Nesson: So at the city level, no city politician is going to pull this off. It was up to the state, Governor Andrew Cuomo, to get it done.
--:-- Sean Rameswaram: A time where Andrew Cuomo could get something done in Albany. How did he do it?
--:-- Stephen Nesson: You know, arguably, probably at the height of his power, he was a fearsome political creature. And he got things done with some serious, you know, painful backroom, you know, arm twisting, arm breaking.
--:-- Sean Rameswaram: Here are the options. God is going to send down $33 billion. That's not going to happen. There is only one way it happens that is conjecture-crossed.
--:-- Stephen Nesson: It was a somewhat maybe easier sell because the reason they claimed that they really wanted to do it was because they needed money for the subways.
--:-- Sean Rameswaram: The subways were just in abysmal shape at that time. People could not get to work on time.
--:-- Stephen Nesson: A college student graduating on a subway car, hugging his family and friends alongside complete strangers.
--:-- Sean Rameswaram: Because instead of walking the stage at Hunter College with his classmates, Jarek Alcantara was stuck here on a stalled E-train deep under Queens.
--:-- Stephen Nesson: If you want to copy my diploma, turn on your airdrop.
--:-- Sean Rameswaram: For politicians, it was just totally unacceptable. You can't expect people to get out of their car if they're going to get into a train that never leaves the platform.
--:-- Stephen Nesson: So they were like, look, we need money to fix this. You know, the environment was also a major concern.
--:-- Sean Rameswaram: All this concentrated activity, the vehicles sitting there idling because they cannot move, and our buses that are not moving, it's also creating all this exhaust and emissions that our people are breathing.
--:-- Stephen Nesson: Can you just tell us what even is this plan?
--:-- Sean Rameswaram: Sure. So when the state passed it, they sort of put some parameters in place.
--:-- Stephen Nesson: First of all, the key thing to know is where is the tolling zone? So it's going to start just south of Central Park, and it's going to go all the way down basically to the bottom of Manhattan.
--:-- Sean Rameswaram: Other than that, there really weren't a lot of guidelines put in for how to run it.
--:-- Stephen Nesson: People who live in the zone that make less than $60,000 a year will receive a credit so they don't get told every time they drive around out of their house.
--:-- Sean Rameswaram: And vehicles that transport wheelchair-accessible vehicles that are transporting people will not be charged either.
--:-- Stephen Nesson: How much are the fees? Like how much would this cost?
--:-- Sean Rameswaram: That's the million-dollar question. A million dollars? That feels like too much. It's actually not enough.
--:-- Stephen Nesson: It's a very interesting arrangement. We don't know how much it's going to cost. There's a group that's still deciding that.
--:-- Sean Rameswaram: But we do know how much they need to make every year. That was baked into the plan.
--:-- Stephen Nesson: So the original idea of it, remember, was to make money for the subways and buses to fix public transit.
--:-- Sean Rameswaram: So they decided on this number $1 billion. They need to make $1 billion a year off congestion pricing.
--:-- Stephen Nesson: So the high end is $23 to enter the zone. But it could be much less than that. It could be $12. It could be $10. It could be as low as $5, although that really doesn't seem likely.
--:-- Sean Rameswaram: There is a group that's trying to figure this out. And the way it's going to work is, you know, it's like making or playing with a giant spreadsheet.
--:-- Stephen Nesson: You know, all these people want to get exemptions from the charge. People from New Jersey don't want to pay it.
--:-- Sean Rameswaram: But for every group that you exclude, that means the price gets higher for everyone else.
--:-- Stephen Nesson: How are we going to, you know, survive? This is ridiculous. You know, charging just to, you know, go home and go to work.
--:-- Sean Rameswaram: OK, so some drivers are understandably mad that they're going to have to start paying money for something they've been getting for free for the entirety of the history of driving in New York City.
--:-- Stephen Nesson: But why is New Jersey mad, Stephen?
--:-- Sean Rameswaram: Well, New Jersey is very mad about this because they already pay a toll to enter the city.
--:-- Stephen Nesson: So they're feeling, to use the words of New Jersey Congressman Josh Gottheimer, they feel like they're getting whacked by New York.
--:-- Sean Rameswaram: This is just a cash grab for the MTA. They're desperate for dollars.
--:-- Stephen Nesson: So who are they looking to? Hardworking commuters here from Jersey to pay, like as their piggy bank, to pay their bills for their mismanagement.
--:-- Sean Rameswaram: And as a matter of fact, the governor of New Jersey, Phil Murphy, is suing over this.
--:-- Stephen Nesson: So today I am here to announce, I don't do this every day. I have to say, that we are suing to block New York's ill-conceived congestion pricing plan.
--:-- Sean Rameswaram: He doesn't even know whether his drivers are going to actually be whacked or pay twice, but he's preemptively suing to sort of stop this process, saying that they didn't do enough research, basically.
--:-- Stephen Nesson: The federal government said they need to do what's called an environmental assessment of their project.
--:-- Sean Rameswaram: The result of that was a more than 4,000-page document looking at counties surrounding New York City in New Jersey, Connecticut, New York, of how this program will impact them, how it's going to impact traffic, how it's going to impact pollution, how it's going to impact the poorest people that live in these areas.
--:-- Stephen Nesson: And basically, New Jersey saying, we don't think you did enough research. Maybe you should do a more detailed analysis.
--:-- Sean Rameswaram: That's why we're here today, to make sure the Department of Transportation hears the voices of the hardworking middle-class commuters who will be forced to pay this absurd $23 a day, $5,000 a year congestion tax.
--:-- Stephen Nesson: And to listen to those voices of young children whose health will be harmed directly by the increased air pollution the congestion tax will cause.
--:-- Sean Rameswaram: So New Jersey does claim that some parts of the state might see higher emissions.
--:-- Stephen Nesson: I took a little peek into the environmental document that the MTA put out, and they do note that traffic elsewhere could change.
--:-- Sean Rameswaram: I don't think New Jersey was necessarily flagged as being the most problematic, quite frankly.
--:-- Stephen Nesson: Some experts who've studied this far longer than I have believe that it's going to be a negligible effect, basically.
--:-- Sean Rameswaram: Well, presumably New Jersey's governor wouldn't go after New York willy-nilly because, you know, they have something of a relationship.
--:-- Stephen Nesson: What does New Jersey say is missing from this 4,000-page document?
--:-- Sean Rameswaram: It's a good question. They're very, very, very skimpy on the details of what they want.
--:-- Stephen Nesson: For example, the MTA's environmental assessment found that 85% of the trips that people make into the central business district, the tolling area, are made by public transit.
--:-- Sean Rameswaram: The MTA's environmental assessment also found that during the morning commute, like the busiest time when most people are traveling, people from New Jersey, by and large, something like 90% of them get into Manhattan on public transit.
--:-- Stephen Nesson: They're not driving into the city.
--:-- Sean Rameswaram: If it goes through, how big a deal for New York City? It's going to be massive.
--:-- Stephen Nesson: I believe the city is estimating that if everything works out, if their spreadsheets are right and the traffic planners are correct, traffic could go down by as much as maybe 19%, 20%.
--:-- Sean Rameswaram: And I'm told that is like an epic sea change on the streets. That's like going from bumper to bumper traffic to free-flowing traffic.
--:-- Stephen Nesson: And the whole country is watching. Seattle, you know, Chicago, Philadelphia. They all want to see, is this going to work? Should we try this here? Or is it going to be a complete failure?
--:-- Sean Rameswaram: The number one biggest obstacle to the Empire State's congestion pricing plan is that lawsuit the Garden State filed.
--:-- Stephen Nesson: We're going to hear if they've got a case when we're back on Today Explained.
--:-- Sean Rameswaram: Support for Today Explained comes from Chime.
--:-- [Theme music fades in]
--:-- Sean Rameswaram: Nobody likes fees and complicated banking, says Chime. And Chime gets that, says Chime.
--:-- Stephen Nesson: Chime is a financial technology company that says they understand that every dollar counts.
--:-- Sean Rameswaram: So when you set up direct deposit through Chime, they say you get access to fee-free features, such as free overdraft coverage.
--:-- Stephen Nesson: Getting paid up to two days early with direct deposit, so much more.
--:-- Sean Rameswaram: Chime says with qualifying direct deposits, you can be eligible for free overdraft, up to $200 on debit card purchases and cash withdrawals.
--:-- Stephen Nesson: Plus, they say you don't need to worry about monthly fees or maintenance fees.
--:-- Sean Rameswaram: You can work on your financial goals through Chime today.
--:-- Stephen Nesson: You can open an account in two minutes at chime.com slash explained.
--:-- Sean Rameswaram: That's chime.com slash explained.
--:-- [Theme music fades out]
--:-- Sean Rameswaram: Today Explained, Ramis Firm, here's what we've got. New York wants to implement congestion pricing. It wants to be the first in the nation to do it.
--:-- Stephen Nesson: They put out a 4,000-page document about all the impacts, and New Jersey said, to heck with your plan, and sued.
--:-- Sean Rameswaram: And they're suing on environmental grounds, which is weird because, like, New Jersey isn't the cleanest place in the world.
--:-- Stephen Nesson: The Garden State. But no, not the cleanest place in the world. The Garden State with more Superfund sites than any other state in the country.
--:-- Sean Rameswaram: So there's a bit of a tension there.
--:-- Stephen Nesson: Professor Michael Hertz specializes in environmental law over at Cardozo Law in New York.
--:-- Sean Rameswaram: He'll also be paying to drive in and out of the city if congestion pricing is implemented in spring 2024.
--:-- Stephen Nesson: We asked the good professor, what's up with New Jersey?
--:-- Professor Michael Hertz: I think that New Jersey, like many others, is very nervous about how this plan will hit it.
--:-- Sean Rameswaram: And they're hardly alone in that.
--:-- Professor Michael Hertz: And one of the things that's complicated about this plan, and frankly complicated about almost any environmental regulation, is that the burdens and the benefits don't always fall on exactly the same people.
--:-- Sean Rameswaram: And that's what makes environmental law so politically, leads to so many political battles.
--:-- Professor Michael Hertz: So a lot of people want to find a way around congestion pricing in New York City, but not a lot of people are suing.
--:-- Sean Rameswaram: New Jersey, however, is.
--:-- Professor Michael Hertz: Can you tell us about the law they're suing under?
--:-- Sean Rameswaram: Yeah. So what they're suing under is something called the National Environmental Protection Act, called NEPA.
--:-- Professor Michael Hertz: NEPA was passed by Congress at the very end of 1969, signed into law by President Richard Nixon, Republican President Richard Nixon.
--:-- Sean Rameswaram: Environmentalist. Environmentalist, at least for a couple of years.
--:-- Professor Michael Hertz: Clean air and clean water, the wise use of our land, the protection of wildlife and natural beauty, parks for all to enjoy.
--:-- Sean Rameswaram: These are part of the birthright of every American.
--:-- Professor Michael Hertz: And so on January 1st, 1970, he signs this law.
--:-- Sean Rameswaram: It's very different than most other environmental laws, however, because it does not directly regulate polluters.
--:-- Professor Michael Hertz: It doesn't tell anybody what they have to do to protect the environment.
--:-- Sean Rameswaram: It's got a bunch of different provisions, some of them very impressive and aspirational and poetic.
--:-- Professor Michael Hertz: The time has come for man to make his peace with nature.
--:-- Sean Rameswaram: But what has turned out to be the most important provision of NEPA and what's relevant to this lawsuit is the requirement that before a federal agency take an action, a quote, major federal action, close quote, that may significantly affect the quality of the environment, it has to stop and consider the environmental impacts.
--:-- Professor Michael Hertz: And the whole theory of the law is that once agencies confront the environmental destructiveness of their actions, they will behave in a more environmentally responsible way.
--:-- Sean Rameswaram: And it's my guess that when NEPA was passed, the legislators who wrote it did not predict that this one clause would become the source of countless lawsuits?
--:-- Professor Michael Hertz: You are a superb guesser. All right. And for two reasons. One, the few words that require a, quote, detailed statement about the environmental impact before action is taken were added very late in the legislative process.
--:-- Sean Rameswaram: The folks who sort of had the original idea and were pushing NEPA didn't think this was the critical part of the legislation, and it got no real attention by the members of Congress who were enacting it.
--:-- Professor Michael Hertz: It was a little kind of throwaway line that was added late.
--:-- Sean Rameswaram: And the second reason that no one would have anticipated what happened was that it's pretty fair to say that all the folks enacting this legislation did not anticipate there would be lawsuits.
--:-- Professor Michael Hertz: The way a lawyer would phrase that is they didn't include a, quote, private right of action.
--:-- Sean Rameswaram: But it was passed at a time when the federal courts were happy to imply such a right.
--:-- Professor Michael Hertz: And very early on in the 1970s, the courts of appeals and then the Supreme Court accepted that, yes, individuals, which includes individuals, it includes companies and it includes states, can sue a federal agency for failing to comply with NEPA.
--:-- Sean Rameswaram: So I want to ask you more about how this law applies in New Jersey.
--:-- Professor Michael Hertz: But could you tell me a little bit about maybe like NEPA's greatest hits? Surely there are some well-known NEPA challenges out there.
--:-- Sean Rameswaram: Well, locally here in New York City, I think the top of the list was Westway.
--:-- Professor Michael Hertz: Westway was this huge public works project along the west side of Manhattan planned in the 1970s and 1980s.
--:-- Sean Rameswaram: Every financial interest you can think of was behind Westway. Billions, billions of dollars at stake.
--:-- Professor Michael Hertz: A lot of it already committed. Originally, it was going to be a giant park all along the west side of Manhattan with a lot of fill into the Hudson River to create the space for this and a highway going, for most of the length of it, underground.
--:-- Sean Rameswaram: And it was a very controversial, extraordinarily expensive project.
--:-- Professor Michael Hertz: Mayor Koch wants assurances that they're going to have the funds before he OKs Westway.
--:-- Sean Rameswaram: Now, we want assurances that we're not going to be inundated.
--:-- Professor Michael Hertz: And I think it's been very reasonable, all that we asked for, that the Army Corps of Engineers open up their public hearings.
--:-- Sean Rameswaram: There was an environmental impact statement. There was a challenge to the adequacy of the EIS.
--:-- Professor Michael Hertz: The federal court said yeah this EIS is long and it got a lot in it but you know what It pretty clear that this is going to have an impact on the bass population in the Hudson River and the court just didn't mention this.
--:-- Sean Rameswaram: And therefore it's got to go back and redo the EIS.
--:-- Professor Michael Hertz: And at that point, this was the mid 80s. Everyone just said, oh, to hell with it. Really? Yeah, we just can't, it's too much.
--:-- Sean Rameswaram: Rather than revise the document and talk about the fishies, they were like, forget it. We're not going to build this huge project.
--:-- Professor Michael Hertz: Remember, this was, I don't know, a decade into. And I mean, it's like congestion pricing, right? Congestion pricing has been around for a long time and supporters have been pushing it.
--:-- Sean Rameswaram: Now, it's come and gone. It's not been a sustained 10 or 15 year effort.
--:-- Professor Michael Hertz: And at some point, you know, it's one obstacle after another. And one is the straw that breaks the camel's back.
--:-- Sean Rameswaram: And is the point of these lawsuits always, as you said, to break the camel's back, to kill a project? Or are there genuine inquiries out there?
--:-- Professor Michael Hertz: Of course, it's both. And you have to look a little at who the plaintiff is.
--:-- Sean Rameswaram: But I think there are three basic goals, not mutually exclusive, in a NEPA lawsuit.
--:-- Professor Michael Hertz: One is to kill the project. One is to delay the project, partly in the hope that delay will end up killing it.
--:-- Sean Rameswaram: Because if you can get a three- or four-year delay, circumstances may be such that it no longer makes economic sense after that three or four years.
--:-- Professor Michael Hertz: Okay. And the third is to alter the project, to get them to modify it in a way which you like better, which may or may not mean is environmentally more protective.
--:-- Sean Rameswaram: And let me ask you, you seem more expert than most in this world of NEPA.
--:-- Professor Michael Hertz: Which do you think New Jersey is trying to do? Kill the project, kill the project, or perhaps alter the project?
--:-- Sean Rameswaram: I can't get in the heads of these guys, but let me say this.
--:-- Professor Michael Hertz: I think that if New York came along and said, okay, tell you what, certainly if they said we will totally exempt New Jersey drivers from the toll, they would abandon the lawsuit.
--:-- Sean Rameswaram: So that's kind of an answer. Now, that's not on the table, but what's on the table is to give New Jersey drivers credit for the tolls they pay to get into Manhattan.
--:-- Professor Michael Hertz: So that the overall amount paid by New Jersey drivers to get to the Central Business District would be the same as paid by, say, someone who lives on the Upper West Side.
--:-- Sean Rameswaram: That would be a good outcome for New Jersey.
--:-- Professor Michael Hertz: I don't know that they're going to get it because I think the lawsuit is awfully weak.
--:-- Sean Rameswaram: And I think the lawsuit is going nowhere.
--:-- Professor Michael Hertz: But one of the things about lawsuits is it can take a very long time to go nowhere.
--:-- Sean Rameswaram: Do you think the country would be better off without NEPA, without this sort of unintended clause in a 1970 law that gives New Jersey a way to delay a plan that New York passed to improve the environmental health of its residents and to even potentially improve its subway system and improve its roads and the rest?
--:-- Professor Michael Hertz: Well, look, one of the things that a number of your questions have revolved around is a concern that you have an environmental law being used for non-environmental ends.
--:-- Sean Rameswaram: And that has always been true.
--:-- Professor Michael Hertz: One of the things about lawsuits is plaintiffs don't have to be pure of heart.
--:-- Sean Rameswaram: You make the legal argument that's available to you, whatever your motivation for opposing the project.
--:-- Professor Michael Hertz: And this disconnect is common.
--:-- Sean Rameswaram: Now, lots of most NEPA lawsuits are brought by environmental groups. They are actually genuinely focused on environmental harms.
--:-- Professor Michael Hertz: You know, just to go back to the question you actually asked, which was, is this net-net? Are we better off with NEPA?
--:-- Sean Rameswaram: I think we're better off with NEPA.
--:-- Professor Michael Hertz: Yes, I think that it has made a significant difference in the destructiveness of federal agency projects and the culture within various agencies.
--:-- Sean Rameswaram: And then you say to them, wait, you got to stop and think. You have to think about the environmental consequences of what you're doing.
--:-- Professor Michael Hertz: You have to hire someone who's in a position to evaluate those and participate in writing the EIS.
--:-- Sean Rameswaram: It changes the culture a little bit. It changes the water cooler conversations.
--:-- Professor Michael Hertz: It forces them to confront what they're doing.
--:-- Sean Rameswaram: And that's not all nonsense. It's not all BS.
--:-- Professor Michael Hertz: It actually does have an impact.
--:-- Sean Rameswaram: Whether it's worth all the effort, that's the tricky question, because NEPA does lead to massive delays, massive expenditure of time, effort, and expertise.
--:-- Professor Michael Hertz: And, you know, there are a couple dozen of these lawsuits like New Jersey's every year that are highly disruptive.
--:-- Sean Rameswaram: And when people say, you know, how come China gets high-speed rail nationwide done in 10 years and we can't build anything in the United States?
--:-- Professor Michael Hertz: NEPA is one of the reasons. It's not the only reason, but it's one of the reasons.
--:-- Sean Rameswaram: And so it does come at a real cost.
--:-- Professor Michael Hertz: It comes down to NEPA and communism. Yeah. Yep. Those are the two evil forces in the world today.
--:-- Sean Rameswaram: Yeah.
--:-- Professor Michael Hertz: Professor Michael Hertz, he's the Arthur Kaplan Professor of Law at Cardozo Law.
--:-- Sean Rameswaram: Earlier in the show, you heard from Stephen Nesson, who's the transit reporter at WNYC and Gothamist.
--:-- [Theme music fades in]
--:-- Sean Rameswaram: Our show today was produced by Amanda Llewellyn, edited by Amina Alsadi, fact-checked by Tian Nguyen, engineered by Rob Byers with help from Patrick Boyd.
--:-- [Theme music fades out]
--:-- Sean Rameswaram: And the show is titled Today Explained.
