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K
OGUT
5/26/09
 
5:58 PM
88
WHAT WENT WRONG: A LEGAL PERSPECTIVEOF CONGESTION PRICING IN NEW YORK CITY
M
ICHAEL
K
OGUT
*
 By defeating congestion pricing on April 7, 2008, the New York State Legislaturesuspended New York City’s ability to follow in the footsteps of its sister cities and become the first city in the United States to charge drivers a fee to enter its congested core. Since New York City lacked the authority to implement congestion pricing on itsown, it was necessary to build political support, especially in the outer boroughs, for itscongesting pricing proposal. Despite the significant role politics plays in land usedecisions, this paper approaches congestion pricing from a legal perspective bydiscussing the history of congesting pricing in New York City and the shortcomings of and alternatives to the congesting pricing proposals.
I. I
NTRODUCTION
............................................................................................89II. T
HE
H
ISTORY OF
C
ONGESTION
P
RICING IN
N
EW
Y
ORK
C
ITY
.................90A. Authority Over the Use of its Roads: New York State versusNew York City.............................................................................90B. PlaNYC 2030 and S. 6068.............................................................91C. Funding from the Federal Government.........................................92D. Congestion Mitigation Commission..............................................93III. A C
RITIQUE OF THE
C
ONGESTION
P
RICING
P
ROPOSALS
........................95A. Privacy.............................................................................................96B. Parking Permits...............................................................................98IV. A
N
E
VALUATION OF THE
A
LTERNATIVES TO
C
ONGESTION
P
RICING IN
N
EW
Y
ORK
C
ITY
.............................................................100A. Cordon Pricing versus Corridor Pricing......................................101B. Increased Parking Costs...............................................................104V. C
ONCLUSION
............................................................................................105
 
* The author received his A.B. from Hamilton College and his J.D. from Albany Law School. Hewould like to thank Associate Dean Patricia E. Salkin for her guidance and helpful suggestions.
 
K
OGUT
5/26/09
 
5:58 PM
Winter 2009
WHAT WENT WRONG
89
I. I
NTRODUCTION
 New York City’s population exceeds 8 million, and it is projected togrow by one million by the year 2030.
1
With more people, come morecars.
 
Congestion in the Central Business District of Manhattan (“CBD”) isa “major problem,” and population growth will make this problem worse.
2
 The scenario poses more than just a problem of inconvenience—accordingto the New York State Legislature, “traffic congestion in New York City’sbusiness district has a severe adverse impact on public health, theenvironment of New York City and adjoining areas, and overallemployment and job development.”
3
As the Legislature suggests, there area number of reasons why New York City should take steps to mitigatecongestion within its limits.As a means of alleviating congestion and the associated economic,environmental and public health concerns, the Mayor of New York City,Michael Bloomberg, sought to implement a road-pricing scheme called“congestion pricing.”
4
The Environmental Protection Agency has definedcongestion pricing as a “fee charged for driving on specific roadwaysduring times of dense traffic.”
5
Congestion pricing is intended todiscourage the use of automobiles, especially during peak hours, andencourage drivers to consider alternatives to driving.
6
Economists haveendorsed congestion pricing as the “single most viable approach toreducing traffic congestion,”
7
and it has proven successful in cities likeLondon and Stockholm, where it has reduced congestion by 15 and 20percent respectively.
8
New York City’s ability to follow in the footsteps of 
1
Press Release, New York City Department of City Planning, City Planning DemographersPaint Picture of City’s Future Population at 9.1 Million, Detailing How City Will Grow by 2030(Dec. 13, 2006).
2
2
B
RUCE
S
CHALLER
, M
ANHATTAN
I
NSTITUTE FOR
P
OLICY
R
ESEARCH
, B
ATTLING
T
RAFFIC
: W
HAT
N
EW
Y
ORKERS
T
HINK ABOUT
R
OAD
P
RICING
(2006), http://www.manhattan-institute.org/html/rdr_03.htm (describing the traffic situation in New York City and the public’sattitude toward congestion pricing).
3
2007 N.Y. State Laws Ch. 384. Bruce Schaller noted how congestion pricing carries thepotential to “reduc[e] congestion; generat[e] revenues to improve roads and public transportation;reduc[e] vehicle emissions and gasoline consumption; and improv[e] the efficiency of the city’seconomy.” Schaller,
supra
note 2.
4
New York City, PlaNYC 2030,
available at 
www.nyc.gov/2030 (last visited Apr. 27,2008).
5
E
NVIRONMENTAL
P
ROTECTION
A
GENCY
, O
FFICE OF
M
OBILE
S
OURCES
. C
ONSUMER
I
NFORMATION
: C
ONGESTION
P
RICING
, (1997)
available at 
http://www.epa.gov/otaq/consumer/42097030.pdf.
6
Id 
.
7
U.S. Department of Transportation,
available at 
http://www.fightgridlocknow.gov/docs/upafrfinal20061204.htm (last visited Apr. 27, 2008).
8
U.S. Department of Transportation, New York City Urban Partnership Agreement, (Apr. 8,2008)
available at 
http://www.upa.dot.gov/agreements/newyorkcity.htm.
 
K
OGUT
5/26/09
 
5:58 PM
90
THE DARTMOUTH LAW JOURNAL
Vol. VII:1
its sister cities, however, was curtailed when the New York StateLegislature defeated congestion pricing on April 7, 2008, effectivelyhalting Bloomberg’s attempt to make New York the first city in the UnitedStates to charge drivers a fee to enter its congested core.
9
 Like many other land use decisions, congestion pricing facedopposition in the political arena. Since the Mayor and City Council of NewYork City lacked the authority to implement congestion pricing, it wasnecessary to build political support for the proposals, especially in the outerboroughs, before seeking approval from the Legislature. Despite thesignificant role politics plays in land use decisions, this paper approachescongestion pricing from a legal perspective.The second section of this paper investigates the authority of NewYork City and New York State to regulate its roads, including the authorityto charge fees for the use of its roads, as well as the history of congestionpricing in New York City. The third section discusses the shortcomings of the congestion pricing proposals, including the privacy and parkingimplications of congestion pricing. In light of the defeat of congestionpricing in New York City, the fourth section proposes and evaluatesalternatives to congestion pricing.II. T
HE
H
ISTORY OF
C
ONGESTION
P
RICING IN
N
EW
Y
ORK
C
ITY
 
 A. Authority Over the Use of its Roads: New York State versus New York City
In the early nineteenth century, New York became “seised in fee” of the streets of the City.
10
Under § 178 of the Act of 1813, the formerowners of the streets of New York City transferred their interests,voluntarily or compulsorily, to the corporation of the City.
11
New YorkState (not the City) compensated the owners of the property for theacquisition,
12
and the City, as trustee, holds the streets in trust for thebenefit of the people of New York State (not the City alone).
13
In additionto being a trustee, the City has the authority to regulate its streets underarticle IX, § 2(c)(6) of the New York State Constitution, Municipal HomeRule Law § 10, and Vehicle and Traffic Law § 1604.
14
However, the New
9
Id.
As an aside, the secretary of transportation is opposed to raising gas taxes as a means of relieving congestion.
10
People v. Kerr, 27 N.Y. 188, 190 (1863); Revised Law of New York of 1813, § 118.
11
Kerr
, 27 N.Y. at 210.
12
Id.
 
13
Kerr
, 27 N.Y. at 211.
14
The Vehicle and Traffic Law uses the word “highway,” not streets, but defines a highwayas “the entire width between the boundary lines of every way publicly maintained when any part

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