Traffic Jam Equality: Evaluating the Constitutionality of Congestion Pricing

Author:Christopher Hudock
Position:J.D. candidate, May 2011, at American University Washington College of Law
Air pollut ion and roadway con gestion have beco me
increasingly problematic in urban environments,1 forc-
ing lawmakers to search for an effective solu tion.2
Governments around the world have turned to taxation and pric-
ing schemes, both as a means of funding and behavior control;3
however, the ability of these methods to limit negative behavior
by reducing traffic and curbing automotive emissions remains in
question.4 Programs that assess fees on drivers for using u rban
roadways ensu re a financi al im position on people traveling
through cities but may not effectively reduce congestion or air
pollution.5 Lawmakers must also consider the Constitutional and
economic implications of such laws in addition to their environ-
mental benefits.
In 2007 , New York City Mayor Michael Bloomber g pro-
posed an initiative that would tax motorists entering certain parts
of the city in an effort to reduce both congestion and air pollu-
tion.6 From a business perspective, the tax is a viable method of
reducing damage to the environment from automotive emissions
and fin ances the program itself.7 However, the tax could face
several Constitutional challenges, specifically claims brou ght
under the Commerce Clause and 42 U.S .C. § 1983.8 Under
Mayor Bloomberg’s proposal, New York City would charge “an
$8 fee on cars entering the busiest part of Manhattan on week-
days.”9 Presumably this regulation would affect not only those
individuals who live in New York, but would disproportionately
affect people commuting to and from Manhattan from neighbor-
ing states, including members of the service sector.10 Therefore,
not only does the policy fail to curb the targeted behavior, but
members of adjacent states face an unequal burden to those indi-
viduals located within New York.11
In 1887, the U.S. Supr eme Court laid the foundation for
this issue in Philadelphia and Southern Steamship Company v.
Pennsylvania by addressing the question of whether a state may
impose upon a company incorporat ed under its laws a tax on
their gross receipts for the transport of persons an d property.12
The court defines wh at consti tutes a restrictio n on interstate
commerce, st ating, “[t]axing the transportation . . . would cer -
tainly be a regulation of the commerce, a restriction upon it, a
burden upon it.”13 The Court then notes th at even in the event
Congress does not make “express regulations with regard to
interstate commerce, it s inaction . . . is equivalent to a declara-
tion that it shall be free” of further regulation.14
Under a similar line of reasoning, the Court in Dennis v.
Higgins reversed a decision by the Supreme Court of Nebraska,
holding that retaliatory taxes and f ees impos ed by one state
against “motor carriers” registered in another state violated the
by Christopher Hudock*
* Christopher Hudock is a J. D. candidate, May 2011, at American University
Washington College of Law
Commerce Clause.15 Both the Nebraska Supreme Court and
the U.S. Supreme Court agreed that in this particular instance,
the nature of the tax did violate the Comm erce Clause, as
it im posed a fee only on carriers “registered ou tside the state
of N ebraska . . . .”16 The Court clarifies that w hile the Com-
merce Clause only addresses Congressional authority to regulate
commerce, the Court has h istorically acc epted the interpreta-
tion that this delegation of power act s as a pro hibition against
state “barriers against interstate t rade.”17 However, the courts
split as to whether this issue was an actionable claim under 42
U.S.C. §1983, with the final decision in Dennis finding the claim
actionable under §1983.1 8 Lik e the pla intiff in Dennis, out of
state commuters could face re taliatory taxes since con gestion
initiatives disproportionately affect commuters in order to offset
the traffic burdens on the city.19
In add ition to Co nstitutional obstacles , the tax could also
impose disproportionate economic burdens. Supporters of the
tax suggest that the burden primarily falls on the wealthy, as they
constitute a majority of the inner city commuters.20 However ,
in a re port by the Committee on Corporations, Authorit ies and
Commissions of the New York State Assembly, the Committee
separated the cost of the tax in relation to income, finding tha t
for residents of the Bronx, Brooklyn, or Queens, the tax would
amount to 4.5 percent of their annual income as compared to 2.5
percent for residents of Westchester or Manhattan.21 The Com-
mittee also found that despite the claims of tax advocates, “[r]
esidents of Queens, the Bronx, Brooklyn and Staten Island who
drive in the Zone [would] pay 47% of the total fees [compared to]
residents of Ma nhattan who drive in the Zone [and would] pay
42% of the total fees.”22 Therefore, according to the Committee,
the burden in proportion to income would be nearly double for
residents of the Bronx, Brooklyn, and Queens.23 Therefore, the
tax could disproportionately disadvantage the commuting popu-
lations of neighboring states and the urban poor.24
Initiative s on congestion pricing such a s Mayor Bloom-
berg’s and those in place in London, Singapore, and Stockholm
pigeonhole environm ental initiatives into a tax and punish for-
mat, placing an inordinate focus on the ends of environmenta l
protection without appreciating the opportunity fo r innovation
and the costs on the local population.25
Endnotes: Traffic Jam Equality on page 61