Top Legal Expert Concludes NYC Has Power to Toll Its Own Roads and Bridges

Mayor de Blasio could make tremendous strides tackling NYC's traffic and transit problems by enacting congestion pricing via home rule.

A city-enacted version of the Move NY toll reform plan would cut traffic and improve bus service, but Mayor de Blasio, shown here talking up his ferry system, has expressed no interest in it. Photo: Michael Appleton/NYC Mayor’s Office
A city-enacted version of the Move NY toll reform plan would cut traffic and improve bus service, but Mayor de Blasio, shown here talking up his ferry system, has expressed no interest in it. Photo: Michael Appleton/NYC Mayor’s Office

One of New York City’s preeminent jurists, Frederick A.O. Schwarz Jr., affirmed today that the city possesses full legal authority to toll its own roads and bridges and thus does not require state approval to implement congestion pricing.

Schwarz, chief counsel of the Brennan Center for Justice at NYU Law School, was director of the NYC Law Department from 1982 to 1986 and later chaired the New York City Charter Revision Commission and the New York City Campaign Finance Board. His support for home rule tolling, expressed in an op-ed in Crain’s New York this morning, lends more weight to the conclusion that Mayor Bill de Blasio can overhaul New York’s dysfunctional toll regime without concerning himself with the many veto points in Albany.

There are now two versions of the Move NY toll reform plan: one that sets a uniform toll to enter Manhattan below 60th Street while lowering tolls on MTA crossings, which would require an act of the legislature; and a city-only model with no toll swap, which could be enacted by the City Council.

Schwarz and his co-authors — Hofstra Law School Dean Eric Lane and NYU Law Professor Roderick Hills, Jr. — trace the origins of the city’s legal authority to a 1950s toll proposal that ran afoul of Robert Moses:

The Legislature passed the law after a blue-ribbon commission, appointed by Mayor Robert Wagner and Gov. Averell Harriman and chaired by banker and civic leader Benjamin Buttenwieser, recommended in 1956 that the state create a new public authority to take over the city’s roads and bridges and finance them with toll revenue. While good-government groups praised the plan, Robert Moses denounced it as an attack on his own Triborough Bridge & Tunnel Authority. Caving in to Moses, the Legislature instead bestowed a new power on the New York City Council to impose tolls on the use of highways “authorized by law.”

They conclude that “authorized by law” must refer to city, not state law, or else the clause would essentially be meaningless. (Interested readers may wish to consult Professor Hills’ law memorandum detailing this and other fine points of law.)

Schwarz’s imprimatur is significant because of the haze of denial that has enshrouded the home-rule option.

At a City Council hearing last month, City DOT Commissioner Polly Trottenberg deflected questions about the idea, saying, “Many attorneys over a number of administrations have looked at this question very carefully. They all determined that the city doesn’t have the legal authority, that we need to get that authority from the state.” That same day, de Blasio insisted that “The only way congestion pricing can even be considered is through Albany. That’s what has been determined by the Law Department long ago.”

Schwarz, Hills, and Lane dispute those dismissals:

We … scholars of New York City law … know of no public corporation counsel opinion defending the Albany-only view of the 1957 law. Indeed, there has been no publicly reasoned defense of such abdication of city power at all, just bland assertions by city officials that unnamed city lawyers have decided for reasons unknown that the city has no powers whatsoever.

While the authority to fix subway service rests with the governor, a mayor looking to tackle New York’s mounting traffic and transit problems could make tremendous strides by enacting congestion pricing via home rule.

The city-only version of the Move NY plan envisions $2.75 car tolls to enter and exit the Manhattan central business district (via the East River bridges and across 60th Street), with an equivalent surcharge for cabs and app-based for-hire vehicles making pick-ups in the CBD. Here are some of the notable anticipated effects:

  • Bus service could be significantly improved, owing to the predicted 10 percent gain in Manhattan traffic speeds and the opportunity to use the reduced car volumes to carve out functional bus lanes.
  • A similar dynamic, buttressed by safety-in-numbers, would make bicycling safer and more widespread. Moreover, some of the toll revenues could pay to build out bike-share throughout the city.
  • Toll revenues could also finance the Riders Alliance’s popular “fair fares” proposal to help low-income households afford subway and bus travel.
  • The taxi surcharge would reduce demand for and supply of Ubers and yellow cabs within and near the Manhattan core, countering the upsurge of for-hire vehicle trips that is the primary cause of the 15 percent slowing of CBD traffic cited by Trottenberg in her testimony to the City Council last month.

While these gains would be impressive, there could be an even bigger payoff if elected officials and civic leaders begin to rally behind congestion pricing. An upwelling of interest could put the lie to Governor Andrew Cuomo’s constant (and circular) refrain that a lack of political support prevents him from backing congestion pricing proposals such as Move NY.

The prospect of New York City charging tolls on its own — and commandeering the toll revenues — could be just the ticket to force the governor to take seriously the Albany version of Move NY — which would do more to reduce traffic and raise revenue for transit.

  • Larry Littlefield

    Comment on Crain’s:

    “There are two million drivers in NYC and we refuse to be used as cash cows to fund the dysfunctional mass transit systems. It’s bad enough that they rape drivers at the MTA bridges and tunnels to divert money to mass transit. That needs to be stopped also. If they need money raise the fair to cover the cost. End of story.”

    Nice rationalization. It’s all waste, fraud and abuse and two sets of books that drivers shouldn’t have to pay for.

    Which gets back to my comment on the “be honest” post. Those fares, those tolls, those taxes are being sucked into the past to the past benefit of Generation Greed. The person making that comment is probably a member. And until the reality is thrown in their face in the way I described, their entitlement will continue to be fueled.

    Everyone wants to suck more and more out and put less and less in. It has been that way for 30 years. Unless people are prepared to face up to that, on to the resulting realities, there will be no progress. Even if there were “congestion pricing,” it would all go to pension increases, bonded debt, and little goodies here and there to benefit the better off and influential.

  • JK

    The political problem for de Blasio is that he could spend lots of political energy pushing a City bridge toll law through City Council, and then have the state quickly preempt it like they did with the plastic bag fee. The mayor would then be left with nothing except political damage inflicted by the parking garage industry and probably public employee unions. It’s theoretically possible that the state assembly wouldn’t agree to preempt the City toll law, but the Assembly could score cheap points and campaign cash by preempting.

  • Vooch

    the root cause of the comment is the belief that gas taxes cover all costs of mass motoring

    education here is keyb

  • redbike

    Thanks for continuing to promote this.

    > Toll revenues could also finance the Riders Alliance’s popular “fair fares” proposal to
    > help low-income households afford subway and bus travel.

    Others may disagree, but I’d bump this bullet point to the top of the list. It provides political cover for both city and state electeds. Your other bullet points all have merit, but merely because they make sense. “Fare fares” gets votes, and funding “fair fares” gets the job done.

  • sbauman

    Have the legal eagles looked at § 1604?

    § 1604. Local ordinances prohibited. Except as otherwise provided in this chapter, local authorities shall have no power to pass, enforce or maintain any ordinance, rule or regulation requiring from any owner of a motor vehicle or motorcycle, or from any operator or chauffeur to whom this chapter is applicable, any tax, fee, license or permit for the use of the public highways, or excluding any such owner, operator or chauffeur from the free use of such public highways, excepting such driveway, speedway or road as has been or may be expressly set apart by law for the exclusive use of horses and light carriages, or in any other way restricting motor vehicles or motorcycles or their speed upon or use of the public highways; or setting aside for any given time a specified public highway or any part thereof constructed in whole or in part at the expense of the state for exhibitions, shows, exercises, entertainments or meetings; and no ordinance, rule or regulation contrary to or in any wise inconsistent with the provisions of this chapter, now in force or hereafter enacted shall have any effect.

    Provided, however, that the power given to local authorities to license and regulate vehicles offered to the public for hire, and processions, assemblages or parades in the streets or public places, and all ordinances, rules and regulations which may have been or which may be enacted in pursuance of such powers shall remain in full force and effect.

  • Andrew

    “Fair fares” is, fundamentally, social services funding, not transportation funding. If it is funded at all, it should be funded out of general revenues.

    Transportation funding should be used to improve the transportation system. Our transportation system badly needs more funding. Siphoning off dedicated transportation funds to lower fares for a segment of the ridership does nothing to improve the transportation system (on the contrary, in some cases it may increase ridership without providing the funding to increase capacity).

    Let’s stop with the gimmicks and get to the core issues.

  • kevin

    Yeah, I wouldn’t really try to attempt it until after the next senate election in the state.

  • redbike

    Thanks for your comment. I agree with your analysis, but not with your conclusion.

    In today’s or any foreseeable political climate, adequate funding from general taxes for public transit is a heavy lift. “Fare fares” is also a heavy lift if funded from general revenues. But IMHO, I think “fair fares” funded by road and bridge tolls is, in NYC, politically feasible.

    Would additional riders who are paying a discounted fare amount to “losing a little on each sale, but making it up in volume”? I think it would be a net plus for the system; also, good public policy; but most important, politically feasible. Charlie K.: if you’re following this discussion, I know you have the credentials to analyse and answer whether adding users who are paying discounted fares benefits or burdens the system.

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