As congestion pricing plans appear headed to court, can't NJ, NY find compromise? | Stile

The bi-state dispute over New York's plan to charge Manhattan-bound commuters from New Jersey an additional congestion pricing fee appears to be hurtling toward a potentially costly and bitter legal fight.

Since the Biden administration gave a crucial final green light for the project, Gov. Phil Murphy has hired top-shelf lawyers — including New York's Randy Mastro, who most memorably compiled an early Bridgegate report that concluded that an emotionally unstable Bridget Anne Kelly was largely responsible for the caper.

The report was a master-class in pre-#MeToo misogyny masquerading as legalese.

Yet the squabble raises a question: Is it really necessary to go nuclear and hire outside lawyers? Isn't there still time for intra-party negotiation?

What happened to neighborly compromise?

After all, we're talking about two blue-state Democratic governors — Murphy and New York Gov. Kathy Hochul. The two share a goal of cleaner air for the region. Their states historically have hammered out transit and infrastructure disputes — and agreements — cooperatively. And they have a broker in President Joe Biden, who has made efforts to address climate change among his top policy priorities.

It would seem that this would be the right issue to get Murphy, Hochul and Biden's transportation secretary, Pete Buttigieg, in a room to reach an agreement. Such an accord could blunt some of the sticker shock that car New Jersey commuters could face from an extra toll, ranging from $9 to $23, based on the scenarios that have been floated.

Murphy spent Thursday in Atlantic City at the National Governors Association chirping about infrastructure on a panel with other governors. He would probably be better off spending his energy with Democratic allies in a quiet boardroom in Manhattan or Washington, working to hammer out a deal.

There is plenty of precedent. We have seen the two states work cooperatively in the past on mutual infrastructure and transportation projects, a relationship institutionalized by the Port Authority of New York and New Jersey.

The relationship has been lopsided at times — more often tilted in New York's favor — but, for the most part, the states distribute the bulk of the toll-generated largesse without controversy. New York and New Jersey have typically smoothed out differences without high-profile lawsuits. And there is also the recent success in getting the Gateway tunnel project launched without a bitter, cross-border skirmish in court.

Rep. Josh Gottheimer, D-Wyckoff, who has led a populist, pro-Jersey pushback on the congestion pricing plan, said New York's plan to tax New Jersey commuters is out of step with that cooperative history, which stretches back more than a century. This time, he argues, New Jersey commuters are being forced to bail out the deficit-plagued MTA without any proceeds shared for Garden State transit needs.

"We used to share and work together," Gottheimer said in a recent appearance on WCBS-TV in New York. "This, to me, is not in that in that cooperation spirit. Not a nickel going to New Jersey, not to NJ Transit, not to the PATH. Every nickel is going to the failed MTA."

Cooperation also came in the form of a regional consortium of Northeast governors coordinating pandemic policy.

And past governors, including Chris Christie and New York's Andrew Cuomo, met personally to plot a regional distribution of Port Authority spoils (with aides on both governors coordinating a pre-planned scheme in 2011 to cut toll hikes for Hudson River crossings at the last minute to minimize public outcry.)

And then there is the cooperative cost-sharing over the Gateway tunnel project, which is finally moving forward. Plenty is being achieved without asking taxpayers to shell out millions for hired-gun lawyers.

More: Hochul says NYC congestion pricing means cleaner air, less traffic, while NJ presses fight

Why won't New York consider compromise?

Hochul, at this point, doesn't appear to be willing to consider altering the general framework of the congestion pricing scheme, which could go into effect by the spring of 2024. The program, which would impose the toll on all Manhattan-bound crossings, is expected to raise $1 billion annually for the MTA.

In a recent WABC-77 Radio interview, Hochul called Murphy a "great friend" and said she talked to him about it. But she also cited statistics showing that the vast majority of New Jersey commuters take mass transit and said many of them would benefit from an improved city bus and subway system, financed in part by the proposed congestion tolls.

"But when you look at the real number of New Jersey residents affected, over 80% of New Jersey residents come to New York City for their jobs by public transit," Hochul said. "So they want us to invest. And we can't invest in the infrastructure and keeping the capital programs on track without new sources of funding."

Yet this isn't entirely about capital investments. It's also about improving the quality of the air. Murphy officials could reasonably argue that getting more commuters out of cars would also reduce Manhattan's polluted air and minimize gridlock on its downtown streets.

Murphy, the persuasive fundraiser who has charmed donors to part with their money for the greater cause of the Democratic Party, might try making the case that a slice of the congestion pricing revenue should be dedicated to NJ Transit which, in theory, will be asked to handle more passengers as some motorists switch to mass transit.

Despite the escalating tensions, New York officials recently suggested that discounts or exemptions could be considered for drivers who pass through the Lincoln and Holland tunnels — although those who enter Manhattan via the George Washington Bridge are another unresolved matter. In other words, New York seemed willing to bend a little.

Earlier: As NYC congestion pricing clears another hurdle, Murphy hires lawyers

Murphy administration officials, however, say the time for quiet negotiation between the states has already passed. In a statement, officials implied that they approached the MTA about the issue — but they offered no details. The administration's statement also said nothing about whether Murphy broached the topic with Hochul.

“The MTA has repeatedly failed to discuss with our administration how the agency can meaningfully address New Jersey’s concerns regarding the MTA’s proposed tolling program," said Bailey Lawrence, a spokesman.

As a result, the administration has hired Mastro and Craig Carpenito, a former U.S. attorney for New Jersey, "to explore all of our legal options, and we anticipate announcing a course of action soon,” Lawrence said.

Jersey prepares to play hardball

So, for now, Murphy is getting ready to play hardball. And in Mastro, a former federal prosecutor and top aide to New York City Mayor Rudy Giuliani, Murphy picked a go-for-the-jugular lawyer, whose aggressive style left its mark on the George Washington Bridge lane-closing saga.

Shortly after the bridge lane scheme was revealed in 2014, Christie hired Mastro to conduct a probe of the incident. He did so without interviewing the principal figures involved in carrying out the plan, which was to gum up traffic in nearby Fort Lee as a way to punish that borough's mayor, Mark Sokolich, for refusing to endorse Christie's reelection.

Among those principals was Kelly, Christie's former deputy chief of staff, whose "time for some traffic problems in Fort Lee" email set the scheme in motion. Mastro's report depicted Kelly as inexperienced and emotionally distraught from a breakup with Bill Stepien, then a top Christie operative.

What is congestion pricing?: Answering all your questions about toll program for NJ drivers

“Events in Kelly’s personal life may have had some bearing on her subjective motivations and state of mind,” the report said.

In an interview, Kelly, who ran an unsuccessful campaign for Bergen County clerk in 2021, said the report was a form of "slut shaming" and that Murphy's hiring of Mastro was "tone-deaf" given the controversies surrounding his first campaign and his early administration.

And Julie Roginsky, a former top consultant to the 2017 campaign, said women staffers faced a "toxic environment."

"The Murphy administration isn’t winning any awards for its treatment of women," said Kelly, who was convicted in a federal trial with Bill Baroni, a former executive director of the Port Authority. The self-professed mastermind of the scheme, David Wildstein, pleaded guilty on related charges and served as the government's star witness in the trial.

The convictions were later overturned by the U.S. Supreme Court. But the reemergence of Mastro in New Jersey as Murphy's congestion-pricing legal eagle rekindles bitter memories.

“His report really did some long-term damage to me, psychologically," Kelly said.

Mastro did not respond to messages seeking comment. Murphy officials also did not respond to messages seeking comment.

Kelly said she doesn't know much about Mastro's skill as a lawyer or about the topic of congestion pricing, but she added, "If I was Kathy Hochul, I'd be worried about what he said about her."

Charlie Stile is a veteran New Jersey political columnist. For unlimited access to his unique insights into New Jersey’s political power structure and his powerful watchdog work, please subscribe or activate your digital account today.

Email: stile@northjersey.com 

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This article originally appeared on NorthJersey.com: NY NJ congestion pricing: Why can't states find compromise?