July 8, 2008
Katy Kuh on Congestion Pricing
NYC's Congestion Pricing and the Dormant Commerce Clause
Had Mayor Bloomberg's proposal to impose a charge on drivers entering southern Manhattan during peak hours managed to survive Albany politics, its next stop would almost certainly have been the courts. See, e.g., Tom Hester Jr., Corzine weighs legal action against congestion pricing plan, Newsday.com (April 8, 2008).
One possible legal challenge to congestion pricing could be that it violates the dormant commerce clause. In Kassel v. Consolidated Freightways Corp., 450 U.S. 662 (1981), the Supreme Court found that an Iowa law prohibiting 65-foot double-trailer trucks within the state violated the dormant commerce clause. Although the plurality in Kassel struck down Iowa's law under the Pike balancing test, the plurality, along with a two-person concurrence, appeared to agree that barring vehicles from a jurisdiction to reduce traffic is a parochial (and therefore discriminatory and impermissible) purpose:
"Iowa seems to have hoped to limit the use of its highways by deflecting some through traffic . . . . [A] State cannot constitutionally promote its own parochial interests by requiring safe vehicles to detour around it." Id. at 677-78.
The Court was particicularly concerned by evidence indicating that Iowa's purpose in enacting the truck ban was to "discourage interstate truck traffic" and that "the only apparent safety benefit to Iowa was that resulting from forcing large trucks to detour around the State, thereby reducing overall truck traffic on Iowa's highways." Id. at 677, 668. Kassel may raise a real question as to whether NYC's congestion pricing proposal -- which overtly seeks to limit vehicle access to much of Manhattan to reduce traffic (while permitting residents within the zone to drive freely) -- could be deemed discriminatory and thereby violative of the dormant commerce clause.
I would argue that NYC's congestion pricing is not discriminatory, even adopting a broad interpretation of Kassel. The sine qua non in ascertaining whether a measure is discriminatory for purposes of the dormant commerce clause is whether it affords benefits to residents of the enacting jurisdiction while imposing costs on those outside of the jurisdiction (and unable to vote on its adoption). In the context of NYC's congestion pricing proposal, the benefits (less congested streets) accrue in large measure to those upon whom the charge is levied -- i.e., people driving into Manhattan during peak hours -- and not just residents of the zone. Moreover, although New Jersey drivers are not politically represented with respect to NYC's adoption of congestion pricing, many outer borough voters (coming from Brooklyn, Queens, Staten Island and the Bronx) are and those outer borough voters will likewise bear the costs of a congestion fee.
I'm optimistic that NYC congestion pricing will someday triumph over Albany politics and, if it does, I'm likewise optimistic about its chances in court (at least with respect to a dormant commerce clause challenge).
Katrina Fischer Kuh
Hofstra University School of Law
w (516) 463-6123
D.C.Circuit - EPA's delay on regulating CO2 is just alright with us
The D.C. Circuit denied Sierra Club's petition for mandamus (PDF Mandamus Petition) in Massachusetts v. EPA with a per curiam decision. (Mandamus Denial PDF) Judge Tatel wrote a thoughtful opinion concurring that mandamus was not warranted, but dissenting in the Court's decision to deny mandamus, rather than hold the petition in abeyance. He observed that the Court regularly holds the Agency's feet to the fire by requiring regular reports on the Agency's progress on remand. Tatel referenced the shenanigans of the Bush Administration in tabling EPA's proposed regulation.