Subway ridership in view (photo: Marc A. Hermann/MTA)
That huge sigh of relief from New York City mass transit advocates last weekend was for the state budget handshake to tack more than a billion additional dollars a year onto a key MTA funding stream, the Payroll Mobility Tax. According to both my calculations and an announcement from Gov. Kathy Hochul, the agreed-to 75% rise in the tax rate on employee salaries paid by businesses in the five boroughs will add $1.1 billion to the PMT’s ongoing annual $1.8 billion take.
(The numbers prorate imperfectly because the rise in the tax rate, to 60/100 of one percent, applies only in the city; the rate in the seven suburban MTA counties remains 34/100 of one percent.)
The upward bump in the PMT is part of the package to avert a fare hike and service cuts that would have jolted the entire metro region. Raising the same $1.1 billion via the subway farebox, for example, would have required a whopping 35% jump in fares, a calamity that would have triggered enough new car, cab, and Uber trips to slow vehicles in Manhattan by 5% and boosted city and regional carbon emissions by nearly 400,000 tons of CO2 a year — enough to negate the climate benefit of 90 new large wind turbines, according to my modeling. And these figures don’t include lost jobs and commerce from worsened transportation. Reducing service to save the same amount would have produced similar bad outcomes.
Score a big win, then, for transit and New York. But the new revenue comes with a downside: taxes on payrolls discourage hiring and compound our area’s anti-business aura. Moreover, this revenue infusion will almost certainly be not the last but the first in a series the MTA will require throughout the decade to limit future fare hikes and improve service even as ridership continues to lag pre-pandemic volumes. Counting on raising the PMT next time, and the time after that, will be a fool’s errand. There has to be a better way.
I believe there is: enact a modest statewide carbon tax and dedicate a third to a half of the revenue to shoring up public transportation budgets around the state, though principally in New York City.
Reappraising Carbon Taxes
On January 1, Washington state launched its carbon-pricing program, the nation’s second all-sectors carbon charge, with a starting price around $20 per ton of CO2, though most of the emission allowances fetched even higher prices in the first carbon auction, in March. I estimate that the same $20 price applied to all fossil fuels burned in New York State could generate revenues of $3 billion a year (see table).
Dedicating a third of those proceeds to the MTA would add a billion dollars to the authority’s annual revenue. Other slices of the revenue could cure deficits at smaller transit systems around the state.
Even with these allocations, roughly half of the new $3 billion in annual carbon revenues would remain available for a range of purposes from home weatherization to rebates offsetting higher fuel costs for lower-income rural New Yorkers.
Of course, no new tax is ever welcomed with open arms. In recent years, moreover, carbon taxing has lost political standing with left and right alike.
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Right-wingers, in thrall to fossil fuels, denigrate the very idea of climate concern. Opinions on carbon pricing on the left, while far more nuanced, tend toward an “eat your peas” quality, seeing the promised revenues but not the powerful tides unleashed by the increased fuel prices.
Could a state carbon tax have a chance in New York this time around? I believe so, if only because MTA deficits are untenable and a statewide carbon tax looks like the least-bad long-term antidote.
Consider:
This panoply of advantages points to diverse potential sources of support for a transit-benefitting state carbon tax:
Competing Claimants?
Electricity producers in New York already pay a carbon fee under the multi-state Regional Greenhouse Gas Initiative (RGGI) cap-and-trade program. In addition, Governor Hochul and the statewide climate coalition New York Renews have advanced competing carbon pricing concepts, both of them, somewhat confusingly, dubbed cap-and-invest. Hence, an MTA-focused carbon tax, which would employ a carbon-based charge on fossil fuels extracted or imported into New York State rather than a carbon cap enforced through sales of emission permits, wouldn’t arrive on a blank slate.
RGGI currently charges electricity producers around $14 for each ton of CO2 their generators emit. This levy is generating $365 million of statewide revenues a year, paid as surcharges on power bills, which goes to support investments in energy-efficiency and renewable electricity. While in theory the RGGI charge could be netted against the new carbon tax, the relative ease and importance of decarbonizing electricity production make it preferable to retain it and add the carbon price on top.
Cap-and-invest presents a trickier set of issues, partly because neither the governor’s prospective program included in the new budget nor NY Renews’ more elaborate plan has been fully fleshed out. In addition, the latter is the fruit of years of deliberation and consensus-building among the coalition’s hundreds of participant grassroots groups, who now constitute a formidable host.
At this writing, NY Renews envisions applying $10 billion in carbon revenues over several years in no less than 73 individual spending buckets grouped in four uber-categories: Climate Jobs and Infrastructure includes elements like aiding electric bus manufacture ($100 million) and offshore wind power supply chains ($300 million). Energy Affordability earmarks $1 billion to wipe out utility customer debt and $2 billion to support building electrification. Community & Worker Transition Assistance devotes $600 million to the “just transition” from jobs in carbon fuels to positions in renewable energy. And Community Directed Climate Solutions sets aside $2 billion to unspecified projects in historically underserved and overburdened urban neighborhoods and rural areas.
The NY Renews plan should be seen, then, as a holistic roadmap to make over not just how energy is supplied in the state but how it is consumed and governed. Billion-dollar-a-year allocations to the MTA aren’t the kind of investment its members have envisioned. Nevertheless, exploratory calculations suggest that the carbon payoff from service improvements paid for by a state carbon tax would be impressive.
As an illustration, I have calculated that an average 20% speed-up in subway trips achieved by running more trains at higher speeds would save straphangers and drivers each around 100 million hours a year (the latter from car trips switching to trains) while reducing car and truck emissions by 900,000 tons a year. Even more CO2 would be eliminated because of New York City’s improved competitive advantages vis-a-vis less “inherently green” suburbs and exurbs.
To be sure, so striking a gain in subway performance would almost certainly carry a price tag well over a billion dollars a year. Still, the prospective benefits underscore both the carbon-cutting potential of infusing new funds into subway service and the need to score competing claims for their climate value.
Broader Considerations and Next Steps
Over time, the carbon tax’s revenue base will shrink as its price incentives kick in and other carbon-cutting policies also gather steam. The resulting loss in tax revenues could be counteracted by periodically raising the per-ton tax rate. New York City could supplement the tax through revenue-generating street-management measures such as curbside pricing and other forms of road pricing.
Earlier this year, Community Services Society CEO (and MTA board member) David R. Jones and Riders Alliance executive director Betsy Plum proposed expanding New York City’s Fair Fares program to allow an additional 772,000 lower-income New Yorkers to qualify for half-fare transit passes. The cost, which they put at $142 million a year, should be a candidate for the carbon spending package.
This discussion has centered on the carbon tax’s creation of a new funding pot to maintain and improve transit affordability and performance. But taxing carbon emissions stands to benefit society in two other major ways. It will diminish financial incentives propping up carbon fuels and also support societal paradigms promoting care over harm.
A carbon tax is more than just a pay-for, in other words. Simply making it more expensive to buy and burn carbon fuels discourages fossil fuel use in a multiplicity of ways. Moreover, the very act of pricing carbon emissions can spur “externality taxing” in other realms, from congestion pricing to taxing the sugar content of soft drinks. Making New York the third U.S. state with broad-based carbon pricing will also add momentum to long-sought federal carbon emissions pricing.
Shoring up MTA finances, while reason enough to enact a state carbon tax, isn’t the lone consideration. The crisis of transit funding should be seen as a catalyst to pricing fossil fuels more closely to their true societal costs — a vital goal in its own right.
The next MTA funding crisis-as-opportunity will be upon us soon. The Legislature should move swiftly to study the benefits of taxing carbon emissions as a way to hold the line — and more — on transit fares and service, well in time for next winter’s budget negotiations. Transit and climate advocates and their counterparts in the Hochul administration should consider integrating a transit-focused carbon tax into their agendas.
Taking $3 billion a year for any public purpose, no matter how noble, is no small matter. The time to start selling a transit-supporting state carbon tax is now.
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Charles Komanoff is a long-time policy analyst and environmental activist who directs the Carbon Tax Center. On Twitter @Komanoff.
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The Court of Appeals (photo: Mike Groll/Office of Governor Kathy Hochul)
Courts are much in the news these days. The Supreme Court’s recent rulings on abortion, gun control, and other issues have stirred controversy. Here in New York, the lengthy process of the governor nominating and the Senate approving a new Chief Judge of the Court of Appeals has raised public interest in the Court’s role. People are reminded that the courts, particularly the state’s and nation’s highest courts, are the final arbiters of crucial public policy issues. Their decisions have far-reaching consequences for our lives.
That highlights the importance of the New York Court of Appeals. The state’s highest court is the forum of last resort in deciding social, economic, political, and constitutional issues that are essential to New Yorkers. Even more, since its creation in 1846, the Court of Appeals has arguably been the most important state court in the nation, the one that the highest courts in other states, and sometimes the U.S. Supreme Court, look to for insight. The high court’s status and prestige was so high that one of its Chief Judges, Alton B. Parker, was nominated for president of the United States by the Democratic Party in 1904 (he lost to Theodore Roosevelt).
The Court of Appeals’ role is further underlined by the fact that, during most of our history, the key social, economic, political, and constitutional issues were settled at the state level. Litigation in the federal court system, commonplace today, was in the past more limited. Appeals to the U.S. Supreme Court were more rare than today.
Why does the New York Court of Appeals matter so much?
The Court of Appeals is sometimes seen as something of a buffer and a bulwark of liberties.
“It is vital that we restore the court to its position of national pre-eminence and ensure that the public is confident in the court’s integrity,” said Associate Judge Rowan Wilson in his Senate confirmation hearing to be Chief Judge (he was soon confirmed). “The court’s role and legitimacy is particularly important now, in the face of the U.S. Supreme Court’s retreat from several of its seminal decisions.”
“State courts are where the issues that are most important to the day-to-day lives of New Yorkers get addressed,” said Caitlin J. Halligan in her Senate hearing to be confirmed as a new Associate Judge of the court, succeeding Rowan Wilson (she was soon confirmed). “It is where the scope of the New York constitution gets hammered out, a task that is especially important at a moment when federal courts appear to be pulling back on some key constitutional protections.”
Judith Kaye, Chief Judge from 1993 to 2008, wrote that “state court dockets comprise the battlefields of first resort in social revolutions.” They must exercise judicial discernment and judgment. “State courts have openly and explicitly balanced considerations of social welfare and have fashioned new causes and action where common sense justice required.”
The Court of Appeals is a model of judicial deliberation.
The high court considers cases that have already made their way up through the state court system, including the supreme court and appellate division. Extensive evidence is presented and considered in those courts. The Court of Appeals reviews the procedures and decisions in the lower courts to make sure that the proceedings were fair and that the law was applied correctly and in line with provisions of the state and U.S. constitutions.
The court has seven members, the Chief Judge and six Associate Judges. Court decisions are collective ones, reached after careful discussion among the judges where conflicting perspectives are aired and alternative outcomes proposed. The Chief Judge presides and may try to persuade his colleagues one way or the other, but the associate judges are independent-minded and the Chief Judge’s influence is limited. Individual judges try out proposed opinions, listen to each other to gain insights, and hold extensive discussions.
Courts are well aware of the importance and consequences of their roles. They expect scrutiny of their decisions. They weigh and balance lots of factors. They recognize the need to explain the basis for the decisions. Sometimes, this results in arbitrary, biased decisions. But usually it results in decisions that are reasonably balanced and carefully explained even if that does not align with various groups’ views of what they think the court should have done.
The Court exercises a high degree of judicial statesmanship.
The Court of Appeals often strikes a judicious balance between two positions. The first is the conservative philosophy of interpreting the constitutions narrowly, focusing on the original meaning of their provisions, and clinging to the precedent of past court decisions – the legal doctrine of “Stare Decisis,” a Latin term that means “let the decision stand.”
The second position is to be more expansive, construing the constitutions more broadly, looking for ways to interpret them in light of contemporary life, thereby keeping them fresh and relevant.
This may sometimes involve articulating “common law,” sometimes called “judge-made law,” defined by the Cornell Law School Legal Information Institute as “law that is derived from judicial decisions instead of from statutes.” Courts do this cautiously, basing their decisions on the implications of the constitutions and precedent or analogy to other decisions. Their decisions, in effect, become law.
State legislatures may nullify a decision by passing new legislation to do so. More often, the legislatures take heed of the court’s reasoning and often codify common law rules from the courts of their state, “either to give the rule the permanence afforded by a statute, to modify it somehow (by either expanding or restricting the scope of the common law rule, for example) or to replace the outcome entirely with legislation,” as the Cornell Legal Information Institute explains.
The “judge-made law” role may sometimes put the high court in a somewhat uncomfortable, high-visibility position. As Chief Judge Kaye wrote, “given the enormous volume of state court litigation, the unending array of novel fact patterns pushing the law to progress, and the inability of state legislatures to react immediately to the many changes in society…courts interpreting statutes and filling the gaps have no choice but to ‘make law’ in circumstances where neither the statutory text nor the ‘legislative will’ provides a single, clear answer.”
The Court of Appeals can be expected to continue deciding tough, high-consequence cases. Its new Chief Judge and new Associate Judge may change the Court’s take on constitutional issues somewhat. But it seems likely that the court will continue, and may even expand on, its history as a judicious but proactive court.
Judges in writing their opinions, and courts in issuing their decisions, have as one audience other judges, attorneys, others involved in the cases, legislators, and others. But they also intend their opinions for the media and for the general public. The media of necessity summarize decisions and editorial writers, pundits, and partisans may pick out particular points and put their own interpretation on the decision. But interested members of the public can and should read the decisions for themselves. They are posted on the courts’ websites. Sometimes the decisions may seem laden with legal jargon. But the best ones are clear, distinct, and direct.
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Bruce W. Dearstyne is a historian specializing in New York history. In 2022, SUNY Press published the second edition of his book The Spirit of New York: Defining Events in the Empire State's History and his newest book The Crucible of Public Policy: New York Courts in the Progressive Era.
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New NYPD technology (photo: Michael Appleton/Mayoral Photography Office)
Many of you have heard some of the horror stories already, how facial recognition technology can track our movements in truly creepy ways. For some people, the moment of realization came last winter, when a mother was ejected from the Rockettes and threatened with separation from her daughter through use of facial recognition.
Proponents of the creepy tracking tech claim it keeps us safe, but what was this mother’s crime? She worked for a law firm that had sued the owners of Radio City, where the iconic Christmas show is performed.
The case showed so many that the threat from facial recognition simply can’t be ignored any longer, but we have been doing just that, ignoring the growing threat for years. Facial recognition already tracks New Yorkers at work and at home. It tracks where we shop and where we seek out entertainment. It’s seemingly everywhere, but oftentimes we have no idea.
That may soon change. This week the New York City Council is considering legislation that would begin to ban facial recognition and other biometric technology. If landlords or store owners want to use your body to track your movements, that abuse may soon be a thing of the past. And the legislation couldn’t come a moment too soon.
My colleagues and I first began calling for a ban on facial recognition more than two years ago as part of the Ban The Scan coalition. Since then, the technology has only become cheaper and more easily abused. Surveillance vendors not only scan our faces, but often take images from social media, using our personal photos to track us against our will.
Some of you may use your face to unlock your phone or computer. Don’t worry, that won’t change. Using your face to unlock a device is night and day compared to using millions of New Yorkers’ faces as a tracking tool. If you choose to use facial recognition for convenience, that’s your choice. But the technologies being used in housing, stores, and elsewhere today are used against us, not for us.
These systems log our movements and make our location accessible to landlords and the companies that own stores and venues like Radio City. For tenants, this can mean being watched in your own building, having a constant log of your movements and visitors.
This is particularly alarming for rent-stabilized tenants. Landlords can use these logs to claim a tenant isn’t using an apartment as their primary residence, when really they’re absent for another reason, such as being in the hospital.
Cheap, ubiquitous tracking isn’t a feature, it’s a threat. How can you tell? Landlords and store owners never allow their own movements to be tracked in the same way.
James Dolan, the owner of Madison Square Garden and Radio City, whose facial recognition barred that mother from the Rockettes, shows publicly what can often go unseen. When facial recognition and other forms of biometric tracking go unchecked, the rich and powerful can use it however they see fit. They can settle grudges, target rivals, and silence critics.
What’s unusual about Mr. Dolan isn’t that he abused the technology at his fingertips, but that he was so open about it. Imagine a city where anytime you post something negative on social media about a company you risk being barred from their premises for life. That sort of corporate tyranny isn’t possible without the cheap, ubiquitous tracking enabled by facial recognition.
But as important as the pending City Council legislation may be, as crucial as it is to safeguard New Yorkers from this tracking at home and in public accommodations, there still is a vital piece missing: The NYPD.
Police use of facial recognition grew rapidly in recent years, with tens of thousands of New Yorkers scanned by the technology. Even as the tech is proven to be biased against Black, Latino, and Asian New Yorkers, and after a string of high-profile facial-recognition-fueled false arrests across the country, the NYPD has made no effort to address its dangerous use of this error-prone technology.
Just as with stores and landlords’ facial recognition, we’ve called for years for a ban on police use of the technology, only to be stalled by City Council bureaucracy. As we finally take these crucial, belated steps to address the technological tracking trauma inflicted on New Yorkers every day, we must also finally bring forward legislation to ban New York City’s own abuse of the technology. Only then will we truly be able to safeguard our city from the dystopian future these technologies threaten.
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Albert Fox Cahn is the founder and executive director of the Surveillance Technology Oversight Project (S.T.O.P.), a New York-based civil rights and privacy group, a TED fellow, a Technology and Human Rights Fellow at the Harvard Kennedy School’s Carr Center, and a visiting fellow at Yale Law School’s Information Society Project. On Twitter @FoxCahn & @StopSpyingNY.
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