Photo: Tierney L. Cros/Bloomberg/Getty Images
Despite Donald Trump’s attempts to vanquish it, New York City’s congestion pricing program has continued unabated, blowing past a mandated April 20 deadline from the federal government to end the toll for drivers traveling at or below 60th Street. Since then, the Trump administration has threatened to withhold billions of dollars in federal transit dollars if New York officials don’t wind down the tolling program by May 21.
“The federal government sends billions to New York — but we won’t foot the bill if Governor Hochul continues to implement an illegal toll to backfill the budget of New York’s failing transit system,” Transportation Secretary Sean Duffy wrote in a letter to Governor Kathy Hochul.
Though the Trump administration is playing hardball in public, a recent misstep in court filings shows that there are some internal concerns about the strength of its case to end congestion pricing.
On Wednesday, attorneys for the federal government seemingly filed an internal memo from Justice Department officials that laid out the weaknesses of the case in striking detail. Duffy has argued that the city’s congestion pricing program is at odds with the intent of the Federal Highway Administration’s Value Pricing Pilot Program, allowing the government to revoke its previous approval for the project. But assistant U.S. attorneys Dominika Tarczynska, David Farber and Christine S. Poscablo wrote that it was “unlikely that Judge Liman or further courts of review will accept the argument” that the congestion pricing program was “not a statutorily authorized ‘value pricing’ pilot.”
The officials also challenged Duffy’s own assertion that the city’s congestion pricing program is required to provide a toll-free option for commuters, writing that they “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.”
In the memo, the Justice Department officials floated a potential new direction for the case, suggesting that the government could utilize pre-existing Office of Management and Budget regulations for ending “cooperative agreements” to terminate the congestion pricing deal. But the U.S. attorneys noted this might not be a sure success, writing that the tolling program agreement “does not have any explicit termination provisions, which may make this argument more difficult.”
Duffy has yet to publicly comment on the letter that has since been removed from the court website. For her part, Hochul has shown no signs of complying with the federal government’s May 21 deadline. “Let me repeat this for those who didn’t hear me the first 10 or 11 times. Congestion pricing is legal. It’s working. Business is up, traffic is down and the cameras are staying on,” she said in a video shared to social media.
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