A Long Road Ahead: Examining the Constitutionality of New York City’s Congestion Pricing Plan

New York City attempted to implement New York’s first congestion pricing scheme, the Central Business District Tolling Program (CBDTP). The CBDTP was paused by Governor Kathy Hochul amidst concerns that the scheme will have negative impacts on families who have not financially recovered from the pandemic. The CBDTP sought to charge drivers a fee each time they entered the Central Business District (CBD), an area below 60th Street in Manhattan. The purpose of this plan was to raise funds for the Metropolitan Transit Authority (MTA) to improve mass transit while simultaneously decreasing pollution and traffic congestion in New York City. The effect of this plan is that all travelers originating outside the CBD would be required to pay a fee to enter, whereas individuals who reside in the CBD can drive around freely, as long as they do not pass the CBD’s demarcation line. The CBDTP raises constitutional issues because of the dormant Commerce Clause, which proscribes state legislation if it discriminates against interstate commerce. This Note argues that the CBDTP is unconstitutional under the dormant Commerce Clause because it discriminates against out-of-state interests. Additionally, even if a court was to find that the law was not discriminatory, its burdens outweigh its benefits, as evidenced by a similar congestion pricing plan implemented in London, which ultimately did not decrease pollution or congestion over time. This Note suggests implementing an area pricing charge, as opposed to the previously proposed cordon charge, which would require all individuals driving in the CBD to pay a fee. This plan is less discriminatory than the cordon charge because it does not favor in-state interests such as allowing those who reside in the CBD to drive around the CBD without paying the toll. Courts will often defer to legislatures when there is a legitimate state interest in enacting a law, but a recent Supreme Court case National Pork Producers implores courts to exercise caution when deferring to legislatures when the democratic process cannot fully protect all of the interests involved, both in-state and out-of-state. This principle is key to understanding why a reviewing court should not defer to the New York State legislature: because it is inadequate to protect the interests of out-of-state actors who had no say in shaping New York policy as they have no representation in the New York State legislature. Thus, the CBDTP is unconstitutional and should be struck down if it was to be reinstated.