It's put up or shut up time for Gov. Hochul.
In an explanation of his ruling last week to advance a pair of lawsuits to un-"pause" congestion pricing, State Supreme Court Justice Arthur Engoron suggested that Hochul's attempt to do away with the traffic toll may have no legal basis — in part because Hochul's legal team has yet to produce any logical basis for the decision.
Engoron denied Hochul's motion to dismiss the two suits on Friday with a short statement from the bench. But in a more formal ruling posted on Monday, the judge wrote that he suspects the governor doesn't have a choice in the matter of signing an agreement to allow congestion pricing to launch.
The lawsuit from the City Club of New York argues that New York State Department of Transportation Commissioner Marie Therese Dominguez cannot decline to sign a Value Pricing Pilot Program agreement with the federal government — the only procedural step left before Hochul called a last-minute halt to congestion pricing's planned June 30 launch.
Hochul has made the case that letting her commissioner sign the agreement is a "discretionary" action that the state has the choice to take or not. The City Club argues that signing the VPPP agreement is merely a "ministerial" procedure that's required by law.
Engoron on Monday signaled that he's inclined to agree with the plaintiffs.
"While respondents will have the opportunity to furnish with their answers, an administrative record, if one exists, in support of their arguments, there remains a more than plausible argument at this stage that New York State DOT's execution of the tolling agreement is ministerial," he wrote (emphasis added).
Under Article 78 of New York's civil practice law, government decisions cannot be "arbitrary and capricious" — meaning Hochul must have justification for her decision to order Dominguez not to sign the VPPP in order to defeat the suit.
Specifically, Hochul will need to establish she had some actual evidence to back up her contention that a $15 toll as planned to launch in June would have done too much harm to the city's economy.
Engoron explicitly called out the governor's lawyer for admitting in court that Dominguez learned about the toll pause from the governor's pre-recorded announcement — and that her big objection to signing the document was that "the governor didn't want the contract finalized."
"There is a question of fact as to how, if at all, Gov. Hochul instructed the NYS DOT commissioner not to execute the tolling agreement," he wrote. "At oral argument, it was implied that the commissioner took it upon herself not to sign it based upon her viewing the governor's announcement of the 'indefinite pause.'"
In another blow to the Gridlock Gov', Engoron more or less laughed off her argument that the suit be tossed because the pause is not a "final" action, since it can be reversed at any time and Article 78 only applies to final decisions.
"As Governor Hochul has not indicated when, if ever, she intends to instruct her commissioner to execute the tolling agreement, there is no evidence that the alleged harm will be prevented or significantly ameliorated by further administrative action," Engoron wrote.
The judge expects Hochul to show up with much more to back up her argument, according to one legal expert. If she fails to do so, she risks losing the trial.
"Now is the time to say, 'Here's a systematic, thoughtful study that I or my staff or an agency or somebody conducted to indicate that it was plausible that implementing congestion pricing would hurt the city's economy, or have some sufficiently negative effect that justified pausing it or canceling it,'" Michael Pollack, a law professor at the Benjamin N. Cardozo School of Law, told Streetsblog last week.
In the case of the other lawsuit trying to undo Hochul's pricing pause, Engoron wrote that he was unconvinced that the Riders Alliance, Sierra Club and New York City Environmental Justice Alliance lacked standing to sue, as the governor's lawyers argued, because the groups identified specific individuals who were able to allege they were specifically harmed by the decision.
Hochul's next filing is due in court by Oct. 15. On Monday, Hochul told reporters that she's assessing her legal options.
