With Stunning Irony, Environmental Reviews Are Being Used to Block Climate Action

Three years after the New York State legislature took bold climate action and approved a plan to create the United States’ first large-scale “congestion pricing” system, the plan still has yet to go into effect.

Under the plan, drivers are supposed to pay a once-daily, variable fee to enter a large, busy section of Manhattan. The city expects the pricing to generate $15 billion over four years to fund its public transportation system. The costs are also projected to get cars off the road, reducing congestion and improving air quality. (For example, congestion pricing in Milan reduced traffic by 14.5 percent and air pollution between 6 percent and 17 percent.)

But the plan, which was approved in 2019, has been held up for years by the federal government, which must conduct a review of the project’s effect on the environment — even though lowering car traffic and boosting public transportation would have an obviously positive environmental impact.

Environmental reviews are a crucial regulatory tool. The Nixon-era National Environmental Policy Act (NEPA) mandates that officials cannot sign off on major, federally funded projects without considering the environmental impact and weighing alternative, less-damaging options. The law was enacted in part as a response to the network of federally funded highways built in the 1950s and ‘60s; the highways were “a catastrophe for cities and a catastrophe for racial justice,” says Danny Pearlstein, policy and communications director of the Riders Alliance, which has pushed for congestion pricing.

It’s a good thing that throughout the country, environmental reviews have led to the alteration or abandonment of plans for environmentally damaging roads, bridges, dams, drilling and irrigation projects, and other construction. Some states and jurisdictions have implemented their own environmental review laws, often called “little NEPAs.” (Since some Manhattan roads receive federal funding, congestion pricing needs signoff from the Federal Highway Administration, FHWA.)

But with experts warning that it’s “now or never” to avoid the worst climate change outcomes with “deep emissions reductions across all sectors,” this well-intentioned bureaucratic review process can delay projects that have clear environmental benefits. And in some cases, environmental reviews can even be weaponized by the fossil fuel industry and other special interests to intentionally block green projects.

Federal Bureaucracy Stalls New York’s Climate Plan

In New York, congestion pricing sat stalled for two years, as the Trump administration simply failed to begin the review process. (During his presidency, Trump also gutted NEPA rules, although Biden has since restored them.) Things looked more promising when the FHWA finally focused on the project under Department of Transportation head Pete Buttigieg in 2021. But the administration frustrated transit advocates last March by responding to the Metropolitan Transportation Authority’s (MTA) draft environmental assessment with at least 425 extensive follow-up questions that had to be answered before moving to the public review stage.

Pearlstein said the project faces a “perfect storm” of a lack of urgency on the federal side, and political hesitancy from state officials. (Even though congestion pricing polls well among New York City residents, it has vocal opponents.)

“You have a highway bureaucracy that is reviewing this like any other highway project,” Pearlstein said, “where once you spend billions of dollars on concrete and steel, there’s no going back.” But congestion pricing isn’t like that. “Here’s a project that’s visionary, that’s going to be transformative, that’s not damaging. And they’re taking their sweet time. Even though, in the event of an unintended impact or consequence, it’s easily tweaked.” For this project, he said, a NEPA review is “a square peg in a round hole.”

Citing the FHWA’s time-consuming questions, Gov. Kathy Hochul said in June that congestion pricing would not go into effect before 2024. But just weeks later, the MTA reinstated hope for a 2023 launch by responding to the hundreds of questions after three months of work.

In the meantime, the MTA’s $51.5 billion 2020-2024 capital plan was built around the expectation that congestion pricing would go into effect in 2021. A late June report found that congestion pricing delays, as well as COVID-19, have put all elements of the capital plan in jeopardy, including extension of a subway line, new buses and subway cars, and adding elevators in 70 stations.

How Threats of Litigation Can Delay or Block Projects

Despite the good intentions behind them, environmental reviews have slowed and blocked alternative energy and public transit projects around the country. In some cases, these laws create a pathway for the rich and powerful to delay projects by suing over an allegedly insufficient environmental review. (While no lawsuits have been filed over congestion pricing, the looming threat of possible litigation is likely one reason the FHWA requested such an extensive review.)

San Francisco, for example, has battled with two litigious car advocates since 2005, who repeatedly sue the city over projects like bike lanes. Rob Anderson and Mary Miles — operating under the name The Coalition for Adequate Review — delay these projects by arguing they need environmental reviews under the California Environmental Quality Act (CEQA), the state’s little NEPA.

Most recently, the duo sued over San Francisco’s Slow Streets Program, which opened some streets for pedestrians during the pandemic, asserting once again that the program needed an environmental review.

Across the country in Massachusetts, a federally approved wind farm off the coast of Nantucket is being stalled by lawsuits from six fishing groups who say the government’s environmental assessment was insufficient. They are represented by the Texas Public Policy Foundation, which receives funding from coal and fossil fuel companies including Koch Industries, ExxonMobil and Chevron. Another NEPA lawsuit is being brought against the wind farm by locals expressing concern about its effect on the endangered right whale. That group receives support and funding from David Stevenson, a former Trump transition team member who directs energy and environment efforts at a libertarian think tank. (An expert on the right whale told the Cape Cod Times that fishing is a much graver threat to whales than wind turbines.)

“The lawyers bringing these cases always want to find the plaintiffs who are the most sympathetic and have standing to sue,” Michael Gerrard, a Columbia Law School professor of environmental law and the director of the Center for Climate Change Law, told the Cape Cod Times. “For that reason, it’s desirable to find groups like fishermen to be the face of the litigation.”

Lawsuits like these killed a similar wind project in Nantucket a decade ago, that time with funds from William Koch. Koch told Commonwealth Magazine at the time that he had two strategies: “One is to just delay, delay, delay, which we’re doing and hopefully we can win some of these bureaucrats over. The other way is to elect politicians who understand how foolhardy alternative energy is.”

Of course, placement of major green projects like wind turbines can be complicated, particularly when they impact oppressed communities that already bear the brunt of ill effects from other development projects. Planners should avoid replicating the same mistakes of the past, when infrastructure projects like highways were concentrated in frontline communities. For example, Native and Tribal communities, including the Yakama in the Pacific Northwest, often oppose wind and solar developments on lands of importance to them. But problems arise when laws meant to protect vulnerable communities as well as wildlife are used to benefit the interests of the rich and powerful.

Back in Manhattan, for example, neighborhood block associations from the wealthy neighborhoods of Greenwich Village, Chelsea and Flatiron sued to stop the city from restricting daytime through-traffic on busy 14th St., as part of a plan that would allow the buses to move faster. The plaintiffs — homeowners who did not want traffic diverted down their streets — argued that the plan should require an environmental review. While courts ultimately ruled in favor of the city, transit advocates calculated that the delays cumulatively cost bus commuters thousands of hours as their buses remained stuck in traffic. At the time, Philip Leff, chair of Transportation Alternatives’ North Brooklyn Committee, said the litigants were “perverting the language of environmentalism.”

Using a similar tactic, the same attorney filed an additional suit, alleging the new bus plan would create a burden for people with disabilities by eliminating some stops. Of course, deciding how far apart to place bus stops is a complicated balancing act: Close-together stops slow down service, while far-flung stops create challenges for riders with mobility issues. And as with lawsuits over environmental reviews, this already difficult process can be complicated by litigants using the language of disability rights to block projects they are already known to oppose for other reasons.

It’s not just bike lanes and wind turbines that are targeted. Lawsuits demanding environmental reviews are similarly used to strategically delay and block a variety of proposals, including housing projects. In Los Angeles, a CEQA lawsuit squashed plans for a 49-unit apartment building in a walkable area, which would have set aside 24 units for disabled, homeless veterans. Earlier this year, courts ordered an enrollment cap at the University of California, Berkeley, after a neighbor sued, arguing that the growing number of students required a CEQA review. And several years ago, an anti-abortion group delayed the opening of a Planned Parenthood in South San Francisco, arguing that their own protests outside the facility would create noise pollution and should trigger an environmental review.

“They always gum up the works,” Pearlstein said of these lawsuits. “They always make things more expensive.” What’s more, they are typically brought by people with “the greatest stake in the status quo, the greatest fear of change, and the deepest pockets… So, the environmental review has run amok, I think it’s fair to say.”

But it doesn’t have to be this way. In 2021, California implemented a temporary CEQA exception for projects involving public transportation. Cat Carter, policy and communications director of San Francisco Transit Riders, celebrated the bill, saying, “It’s counterintuitive that projects that help people get out of their cars, travel more sustainably, make our streets safer, and make it possible to address climate change have been held up for years, with extra costs piled on, to see if they somehow might negatively impact the environment.”

In April, SPUR, a Bay Area think tank, analyzed the results of the CEQA exception, finding that it has been successful in getting sustainable transportation projects moving. Legislation is pending to make this exemption permanent.

Hope for the Future of Congestion Pricing

Now that New York has submitted its response to the FHWA, congestion pricing seems to be inching forward again — as long as it doesn’t run into more administrative hurdles or any lawsuits.

When it does go into effect, the city stands to benefit in a variety of ways. A 2008 FHWA analysis of international cities’ congestion pricing programs found that they improved air quality, sped up traffic, raised city revenue and had no negative economic impact on businesses in the zones.

A New York City nonprofit, the Community Service Society, calculated that the plan will benefit 2.2 million city residents who commute via public transportation. In fact, 50 times more low-income workers who live in the outer boroughs commute by transit than drive into Manhattan.

Pearlstein argues that even people whose jobs require them to drive will benefit. “It makes it possible to do more work in the workday, because of less time stuck in traffic,” he said. “Imagine a plumber making service calls, and able to make a couple more calls in the day, and you know, make another $1,000 potentially, because of less time wasted.”

And if the project keeps getting delayed? “The result will be a transit system that continues to fall apart,” said Pearlstein. “And roadways that continue to be dangerously congested, stopping ambulances and buses in their tracks, filling the air with particulates from diesel trucks, stopping traffic, and amping up our carbon emissions.”