The memo says “there is considerable litigation risk” in defending the letter Secretary of Transportation Sean Duffy sent on February 19, ordering the termination of New York’s program. “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 memo goes on, however, to advise the DOT of another argument it could make that may be more successful.
The Department of Transportation has since replaced the trio of DOJ lawyers that authored the memo, The New York Times reports, and plans to transfer the case to the civil division of the Justice Department in Washington. “Are S.D.N.Y. lawyers on this case incompetent or was this their attempt to RESIST?” an agency spokeswoman told the Times in a statement.
Dated April 11, the memo was sent to the DOT after Duffy publicly affirmed the department’s demand that New York end the program by April 20, but before the secretary upped the ante of his threats to New York as the deadline passed, announcing Monday that he would put a moratorium on any new federal approvals for transit projects in Manhattan until the state shut down the tolling program.
Duffy had given two reasons that New York’s congestion pricing program, which charges drivers $9 to enter Manhattan’s central business district, violated federal statute. First, he argued that Congress only authorized tolling programs on roads where drivers have the option to take an alternative, free route. Second, he said the state had designed the program to be a revenue raiser for the MTA, New York’s state-run transit agency, rather than a true effort to reduce congestion, and therefore the toll was not set appropriately.
But the Federal Highway Administration had spent years assessing New York’s program before approving it. “Other than the Secretary’s decision itself, there is no other material supporting or explaining the DOT’s change of position,” the DOJ memo says. There’s nothing in statute that disallows a two-fold goal of raising revenue and reducing traffic. Moreover, the lawyers note, the Supreme Court’s decision last year to overturn a decades-long precedent that gave agencies broad authority to interpret their statutory mandates, will hurt Duffy’s case. They also point out that Judge Liman, the district court judge who is presiding over the case, had previously ruled that the Value Pricing Pilot Program, the federal statute under which congestion pricing was approved, was designed to support these kinds of programs.
The memo warns that continuing down this route could open up both the department and Duffy personally to further probes. “The thin administrative record may lead plaintiffs to point to these ‘gaps’ in the administrative record as justification for extra-record discovery from DOT,” it says, “including requests for production of emails and depositions of agency officials, including the Secretary in particular.”
If Duffy really wants to win this case, the DOJ advises, he should instead claim he’s revoking approvals due to “changed agency priorities,” rather than saying the program violates statute. There’s precedent for using this argument to terminate “cooperative agreements” between the federal government and third parties, and Duffy could cite the same two reasons that he’s already provided. It’s not a sure thing, the memo suggests, but it’s more defensible than the current path.
New York has refused to comply with Duffy’s demands and confirmed in a court filing on Wednesday that it would not shut down the program unless and until the court tells it to.
Editor’s note: This story has been updated to reflect the removal of the memo’s authors from the case.
