Attorneys for the Federal Highway Administration, seemingly by mistake, uploaded an internal legal strategy memo into the record of the MTA's lawsuit against U.S. Transportation Secretary Sean Duffy over his illegal order to end congestion pricing — and the memo discussed how difficult it will be for Duffy to win.
Instead of filing documents that were expected to be part of Duffy's defense for withdrawing approval for congestion pricing, lawyers instead uploaded an email sent on April 11 from Assistant U.S. Attorneys Dominika Tarczynska, David Farber and Christine Poscablo discussing the weaknesses in the federal case and charting a different, but no more guaranteed way, to end the toll.
The trio of U.S. Department of Justice attorneys, who are on this case, argued that there was a significant risk of losing the case if argued on Duffy's claim that it is illegal to create a "cordon pricing" zone without a free route into the zone. The lawyers also questioned Duffy's contention that federal law does not allow congestion pricing tolls to raise revenue instead of only reducing congestion.
In other words, Duffy's case is weak.
"The Secretary provides two reasons why [New York's] Central Business District Tolling Program is not an eligible pilot project under the [federal] Value Pricing Pilot Program statutory language: (1) the program constitutes impermissible 'cordon pricing,' which is not authorized because it does not offer a toll-free option, and (2) the level of CBDTP tolls has been set primarily by the need to raise revenues rather than prevent congestion. Neither of these reasons is likely to convince the Court," the lawyers wrote to U.S. DOT Senior Trial Attorney Erin Hendrixson. (Read the full memo here.)
More bad news for Duffy: the trio's letter also said there is plenty of legislative history to uphold the idea that congestion pricing is a regular thing that the Congress was considering when it created the Value Pricing Pilot Program, the federal program under which congestion pricing is run. Under VPPP, there's no requirement for a free road into a given area. In the lawyers' words:
- "[L]egislative history makes clear that ... the term 'congestion pricing,' was understood by its drafters to simply mean 'a system of charging for highway or bridge user-tolls based on peak hour travel demand.' Among the examples of 'congestion pricing' that were discussed was Singapore, which since 1975 had required a sticker 'to enter the central areas during morning rush hours' —a situation where tolls are inescapable."
- "[T]here are numerous examples of FHWA interpreting 'congestion pricing' to include such area-wide or cordon pricing projects."
- "Furthermore, we have not identified a provision that requires there to be a non-Interstate route to a particular location, or a requirement that that route not be tolled."
The lawyers also note that the FHWA has already recently argued in court that congestion pricing is both meant to reduce congestion and raise revenue, contrary to Duffy's argument that the toll does nothing to reduce congestion.
"In our filings before Judge [Lewis] Liman..., the government has repeatedly stated that the goals of [congestion pricing] are two-fold, reducing traffic congestion within the CBD and funding capital projects. ... [Environmental review documents] support the conclusion that the tolls set will decrease congestion in the CBD. As a legal matter, there is nothing in the statute that prohibits a VPPP program from having a two-fold goal, limits how tolls are to be set, or sets forth the amount of congestion reduction that is to be achieved," they wrote.
And crucially, the lawyers admit that the administrative record, the documents that are supposed to explain how the government came to a carefully considered a decision, is basically Duffy's letter and nothing else.
"[B]ased on a preliminary review of the documents provided for inclusion in the administrative record, it appears that other than the Secretary’s decision itself, there is no other material supporting or explaining the DOT’s change of position," the memo said.
But there is some good news for Duffy — the DOJ attorneys argue that Duffy should simply make the case that existing law allows the federal government to end "cooperative agreements." Duffy could then, the lawyers suggest, make the argument that congestion pricing no longer fits within his agency's priorities.
Duffy in fact made that case in a Monday letter to Gov. Kathy Hochul giving her one more month to turn the tolls off.
But even that wasn't a slam dunk according to the very lawyers who suggested it.
"The CBDTP agreement does not have any explicit termination provisions, which may make this argument more difficult," Tarczynska, Farber and Poscablo wrote.
Relying on that strategy still requires the FHWA to send a "notice of termination" which is how Duffy classified his letter sent earlier this week. Such a notice, per the lawyers does actually allow the federal government to punish non-compliance with conditions like stripping federal funds, though the MTA already sent a letter to Judge Liman asking for a hearing to stop the government from not sending any funding to New York while congestion pricing continues.
"We will meet and confer with counsel for defendants both on the substance of the Letter and on an appropriate schedule to brief a motion for a preliminary injunction preventing the threatened enforcement measures," the MTA's attorney Robert Kaplan wrote in a letter filed with the court earlier on Wednesday.
In a final, incredible twist, the trio of federal lawyers suggested that if Duffy strips New York City of its pollution-, crash- and congestion-reducing tolling plan, his agency might have to do an environmental assessment or environmental impact statement!
"If FHWA determines that non-compliance cannot be remedied by imposing specific conditions ... it should follow all applicable notice and hearing provisions ... and also evaluate whether a new NEPA analysis is required to assess the environmental impacts of terminating the CBDTP."
