Lawyers for the Department of Transportation appear to have accidentally uploaded an internal memo detailing the federal agency’s plan to kill congestion pricing in New York — and admitted that it’s “very unlikely” to succeed.
The 11-page filing, which was posted on a court docket and then quickly deleted late Wednesday, lists the holes in Transportation Secretary Sean Duffy’s legal arguments to stop the tolling program that charges drivers entering Manhattan below 60th Street with a $9 fee.
The three government lawyers tasked with defending Duffy’s move cast doubt on his argument that the feds have the right to pull approval for the first-in-the-nation scheme — which was given the green light during the Biden administration under a DOT pilot program.
“It is unlikely that Judge [Lewis] Liman or further courts of review will accept the argument that the [congestion pricing plan] was not a statutorily authorized ‘value pricing’ pilot under the Value Pricing Pilot Program,” the letter reads.
“We have been unable to identify a compelling legal argument to support this position,” the lawyers continued, citing numerous examples of courts giving local governments space to try “novel social and economic experiments.”
The attorneys were also skeptical about Duffy’s argument that congestion pricing violates federal law because it doesn’t offer a toll-free alternative for drivers.
And Duffy has pointed out that the toll amount was set based on how much money the state needs to raise for the Metropolitan Transportation Authority — and not as a way to actually alleviate gridlock on Manhattan’s busiest streets.
“Neither of these reasons … is likely to convince the court,” the memo said.
“It is very unlikely that Judge Liman or further courts of review will uphold the Secretary’s decision on the legal grounds articulated in the letter,” the lawyers wrote.
They also noted that since other than Duffy’s decision itself there appears to be “no other material supporting or explaining the DOT’s change of position,” that could put the agency at risk of “extra-record discovery… including requests for production of emails and depositions of agency officials, including the Secretary in particular.”
The lawyers pointed out another avenue where Duffy could potentially kill the plan through the Office of Management and Budget “as a matter of changed agency priorities.” But they noted that argument could also be smacked down in courts.
A letter Duffy sent to Gov. Kathy Hochul this week after the feds’ second deadline for the MTA to stop collecting the tolls — which included a “formal ‘notice of termination’” — appears to indicate he’s on board with shifting strategy.
But the lawyers noted the so-called “cooperative agreement” between the MTA and the feds “does not have any explicit termination provisions,” and that any change could trigger another environmental review process to “assess the environmental impacts of terminating” the congestion pricing scheme.
The memo was filed with Manhattan federal court, on the docket for the MTA’s lawsuit against the DOT seeking to stop the feds from halting the controversial program.
In a recent hearing in the case, the government attorneys have deferred questions about the Trump administration’s move to kill congestion pricing to Duffy, saying that the former reality TV star was still “evaluating” what his next moves were if Hochul continues to refuse to comply.
Hochul’s office didn’t immediately return a request for comment.
Transit advocates were quick to celebrate the inadvertent sharing of the internal memo.
“Last night’s leak screams the quiet part loud. The feckless feds have no case against New York’s immensely successful congestion relief program,” said Riders Alliance Policy & Communications Director Danny Pearlstein.
“Bus riders and drivers will enjoy faster commutes and subway riders will be winning reliable signals and accessible stations for a very long time to come.”
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