NYC's new congestion pricing program has grave environmental justice implications for poor, working class, and Black communities which will be subjected to increased pollution and poor air quality.
It’s been said that the road to bad policy is paved with good intentions. The case of New York City’s new congestion pricing program puts this aphorism to the task as both the intentions and the program itself raise salient questions about who benefits, who suffers, and if the inchoate initiative even complies with at least two landmark State statutes that purport to position New York State as the national leader in climate action and environmental justice.
The congestion pricing program, which charges drivers entering Manhattan from 60th street and below $9.00 between the hours of 5 a.m. to 9 p.m. on weekdays and 9 a.m. to 9 p.m. on weekends. During all other times, the fee will be $2.25. The fee will eventually rise to $12 in 2028 and then reach its original rate of $15 in 2031, which was reduced to $9.00 due to a series of political machinations to be explained later in this piece.
As displayed in the figures below, certain entryways into Manhattan from New Jersey, Brooklyn, and Queens will be tolled, while others will not. Motorists who live in the congestion zone will not be charged a fee to drive around or park in the area, only if they leave and return to it. A network of toll scanners in the congestion zone will determine the vehicles to be charged the fee.
The congestion pricing program was originally slated to commence on June 30, 2024. However, New York Governor Kathy Hochul delayed the start date out of concerns that it would adversely impact candidates running for House of Representative seats statewide. The loss of House seats in New York was pivotal in delivering the House to the Republicans during the 2022 midterm elections and some have speculated that House Minority Leader Hakeem Jeffries directly requested Hochul wait until after the November elections to commence the program due to an April 2024 poll revealing that nearly two-thirds of New Yorkers opposed congestion pricing.
Hochul announced an indefinite pause of the program on June 4, 2024, much to the chagrin of environmentalists, economists, and other proponents of congestion pricing who cited the need for revenue from the program, which is projected to generate as much as $1 Billion annually for necessary improvements to New York’s transit system that is plagued by aging and failing infrastructure. The pause was supported by Minority Leader Jeffries.
Congestion pricing proponents also claim the initiative is necessary to ameliorate rampant traffic gridlock in Manhattan and put the State on track to achieve its emissions reduction mandates as stipulated in the Climate Leadership and Community Protection Act (CLCPA), also known as “the climate law,” that was signed into law by former Governor, Andrew Cuomo in 2019. The CLCPA, heralded by many as the nation’s leading climate law, requires 40% of statewide emissions to be reduced below 1990 levels by 2030 and 85% by 2050. But it’s the environmental justice provisions that make the CLCPA stand out, and these provisions will now be put to the test with congestion pricing now in effect.
New York’s climate law arguably, offers more protections for communities that have shouldered disproportionate burdens associated with exposure to pollution, poor air quality, and poverty than any law in the country. Congestion pricing may expose some of these environmental justice (EJ) or disadvantaged communities (DACs) to even more toxic emissions as it’s anticipated that drivers seeking to avoid the congestion toll will alter their travel routes through DACs located in the Bronx, Staten Island, and New Jersey. The issue has been raised since the Federal Highway Authority (FHWA) and the Metro Transit Authority (MTA) began studying the impacts of congestion pricing in New York City nearly three years ago.
Mychal Johnson, co-founder of the Bronx based climate and environmental justice (CEJ) organization, South Bronx Unite, decried congestion pricing as sacrificing the health and human rights of poorer Black and Brown folk to accommodate wealthier, mostly white, New Yorkers in mid and lower Manhattan. According to Johnson, asthma hospitalizations in some Bronx communities are 21 times higher than in any other New York City neighborhood. Columbia University’s Center for Children’s Environmental Health affirms that areas of the South Bronx have one of the highest death and disease rates from asthma in the country. We already know that majority Black and Brown communities like the Bronx experienced higher morbidity rates during the height of the COVID pandemic due to exposure to poor air quality, lack of adequate access to healthcare, and other socioeconomic variables associated with poverty and un/underemployment. Congestion pricing may now increase the vulnerability of the Bronx, Staten Island, and other DACs to future pandemics and other health-related calamities exacerbated by exposure to poor air quality.
Brother Johnson’s concerns point to why environmental justice practitioners use another sobriquet for EJ communities - sacrifice zones, which is exactly what congestion pricing will render areas in the Bronx, Staten Island, and New Jersey into.
This is not only immoral, it’s also illegal and no one knows this better than FHWA. According to the agency’s own environmental review, alterations in driving patterns that send more cars through the Bronx and Staten Island will cause short and long-term increases in criteria pollutants including, but not limited to, carbon monoxide, sulfur dioxide, nitrogen dioxide, and particulate matter, as well as mobile source air toxins (MSATs).
FHWA and MTA have proposed mitigation measures to reduce impacts to the Bronx and Staten Island DACs, which seems to contradict the agency's assertion that the program will result in no significant impacts. Among the proposed mitigation measures include $15 million to replace diesel-powered transport refrigeration units at the Hunts Point Produce Market - one of the biggest single polluters in the Bronx, $20 million to fund an asthma care center and $10 million to add air filtration systems to schools near highways.
But here’s the thing - the money for these mitigation measures would be generated by fees collected from the congestion pricing program, which essentially means that the people will be fitting the bill for cleaning up, in theory, the Hunts Point Produce Market’s pollution. It’s the equivalent of someone slashing your tires and then sending you a bill to have them repaired or replaced - more plainly, it’s environmental extortion.
As Johnson points out, Hunts Point Market was already spewing toxic emissions in the Bronx and there’s no direct nexus between increased traffic and the facility’s existing operations - it’s like turning down the faucet in the kitchen and turning up the faucet in the bathroom as a form of water conservation. This egregious arrangement not only proves that FHWA and MTA know that congestion pricing will more than likely subject DAC residents of the Bronx and Staten Island to worse air quality, it also demonstrates the recommended mitigation measures are arbitrary, capricious, and unlikely to ameliorate clear and present threats to the public health of poor Black and Brown New Yorkers. Moreover, FHWA and MTA may have engendered a precedent in which polluters may simply attempt to “mitigate” their way out of environmental racism rather than comply with the plain language of statutes like the CLCPA and New York’s Green Amendment that enjoin agencies and project proponents from further burdening DACs/EJ communities.
Allowing New York’s congestion pricing program to operate in a way that circumvents statutes vindicates that idea that so-called America is less a nation of laws and more a nation of loopholes.
And here’s how congestion pricing finds itself stuck in the traffic of a litigation quagmire. While Section 7(2) of the CLCPA indicates that an agency must identify alternatives or greenhouse gas mitigation measures when a proposed action is not consistent with greenhouse gas emissions limits, such mitigation measures do not preclude compliance with Section 7(3) which prohibits all state agencies, offices, authorities, from disproportionately burdening DACs when considering and implementing a proposed action. This all to say, mitigation measures that may or not be effective, cannot act as qualifiers to operate or implement an action or program that disproportionately and adversely impacts an identified disadvantaged community. This is likely why a federal judge has ordered FHWA to provide more information on the mitigation measures by January 17th. Moreover, two years before FHWA completed its analysis of congestion pricing, 70 percent of New Yorkers voted to amend the state’s constitution and guarantee the right to clean air, clean water, and a healthful environment for every resident - known commonly as New York’s “green amendment.” It’s unclear if pending lawsuits against congestion pricing will invoke the Green Amendment, but on the surface, it’s clearer than the air in the Bronx that the new program likely impedes the constitutional and human rights of impacted DACs.
It’s unfortunate to observe so many in the U.S. climate “movement,” including historically white-led environmental groups and even certain environmental justice organizations, celebrating congestion pricing when they know its “success” comes at the expense of poor, Black and Brown communities. Initiatives that purport to reduce climate impacts while increasing environmental racism and denying constitutionally mandated human rights must be characterized for what they really are - false solutions.
It’s curious that certain environmental organizations cited the CLCPA as part of a lawsuit they filed against Governor Hochul for delaying the start of congestion pricing while remaining silent about how the program likely violates the very climate law they purport to herald. This kind of behavior contemporaneously represents a circular argument and abject hypocrisy. Arbitrarily choosing when and when not to evoke the climate law and New York’s green amendment further demonstrates that far too many environmental and environmental justice organizations prioritize short-term pyrrhic victories over long term climate and environmental justice, just as we observed when the so-called Inflation Reduction Act, which also sacrifices EJ communities, was signed into law.
While working with the Climate Justice Alliance as a policy coordinator, I assisted in developing five key questions that should be asked before the development or implementation of any policy initiative:
- Who Tells the Story;
- Who Makes the Decisions;
- Who Benefits and How;
- How Does this Build or Shift Power;
- What Else Will this Impact?
Supporters of the congestion pricing program have clearly not considered these questions in the same way they are not considering the impacts of this program on EJ communities - and this may have consequences. Because ironically, it may be president-elect Trump who has promised to shutter the program, which provides relief to EJ communities in New York and New Jersey. If this turns out to be the case, the Democrat party aligned U.S. climate movement will need to ask itself how it expects poor Black and Brown EJ communities to get in line and vote for their party if these groups won’t get in solidarity with EJ communities in ways that demonstrate their lives matter as much, if not more than their votes.
Nonetheless, communities like the Bronx and Staten Island are some of the most resilient in the world, which is to say that while they may get choked out by toxic policies like congestion pricing, they will never tap out when it comes to fighting for their human health and human rights. For, as Michael Mulgrew, president of the United Federation of Teachers who are leading a lawsuit against congestion pricing, recently stated, “Our lawsuit continues because the congestion pricing plan that is now in effect puts the financial and environmental burden on communities least able to pay, and the last to see improved air quality or less congestion.”
No Compromise
No Retreat
Anthony Karefa Rogers-Wright is a national racial and climate justice advocate. He is a proud member of the Black Alliance for Peace (BAP) and is blessed to be the father of his eight-year-old son, Zahir Cielo. The opinions expressed in this piece are his own.
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