DOJ admits case against congestion pricing in NYC is weak in internal memo
Federal layers seeking to kill New York City congestion pricing said they mistakenly filed a memo admitting flaws in the Trump administration's case.
Attorneys in the Southern District of New York have been under fire for resisting efforts by the Justice Department to dismiss the corruption case against Mayor Eric Adams, and now they're being attacked for accidentally filing a memo that may have shot the Department of Transportation's case in the foot.
DOJ memo says there is "risk" in defending transportation secretary's argument
The memo filed by three assistant U.S. attorneys in Manhattan's Southern District admits arguments made by Transportation Secretary Sean Duffy to kill congestion pricing are risky and unlikely to pass muster with the judge.
The attorneys said Duffy's decision to order Gov. Kathy Hochul and the Metropolitan Transportation Authority to turn off the toll readers was "contrary to law."
In the memo addressed to DOT's senior trial lawyer, they wrote: "there is considerable litigation risk in defending the Secretary's February 19, 2025 decision against plaintiffs' claims under the Administrative Procedure Act, that the decision was contrary to law, pretextual, procedurally arbitrary and capricious, and violated due process ... it is unlikely that Judge Liman or further courts of review will accept the argument that the [New York City Central Business District Tolling Program] was not a statutorily authorized 'value pricing' pilot under the Value Pricing Pilot Program ... "
A spokesperson for Duffy said in a statement to CBS News New York, "Are SDNY lawyers on this case incompetent or was this their attempt to RESIST? At the very least, it's legal malpractice. It's sad to see a premier legal organization continue to fall into such disgrace. SDNY's memo doesn't represent reality. Kathy Hochul's congestion pricing war against the working class was hastily approved by the Biden Administration after Donald Trump was elected. Taxpayers already financed the highways that Hochul is now shutting down to the driving public and there is no free alternative. This is unprecedented and illegal. If New York doesn't shut it down, the Department of Transportation is considering halting projects and funding for the state."
CBS News New York has learned the three SDNY attorneys who filed the memo were taken off the case, which going forward will be handled by the DOJ Civil Division.
U.S. Attorney asks judge to seal mistakenly-filed memo in congestion pricing case
President Trump's hand-picked candidate to run the U.S. Attorney's office, Jay Clayton, quickly fired off a letter to Judge Lewis Liman, asking him to remove or seal the memo because, "an attorney-client privileged / attorney work product communication that was inadvertently filed."
Nonetheless, the attorneys' memo threw cold water on Duffy's argument that congestion pricing is illegal because it leaves no toll-free option for driving into Manhattan below 60th Street, and that money raised from the tolls is for easing highway congestion, not mass transit projects.
"Whether it was in response to whatever they're talking about internally, whatever Secretary Duffy is tweeting or saying on Fox News, we have always been absolutely confident that congestion pricing could not be taken down unilaterally by the federal government," MTA Chair and CEO Janno Lieber said on WNYC radio.
Two months ago, Duffy announced the administration pulled federal approval for congestion pricing and said the program will have to end. He recently gave the MTA until May 21 to comply, otherwise he said the Department of Transportation will bring all nonessential construction projects in Manhattan to a halt, which his spokesperson reiterated Thursday.
"The secretary's reckless campaign to defund transit for millions of New York working families is a disgrace. His persistent lack of contact with reality is shocking, especially when planes are falling out of the skies," Danny Pearlstein, policy director for Riders Alliance, said.
New York officials have repeatedly said they will not comply with the federal government's deadline. An agreement previously was reached to allow the tolls to continue into the fall.
The tolls led to a 13% reduction in traffic in the Manhattan Central Business District in March, according to the MTA. The agency reported it collected $51.9 million from the tolls in February, $3.3 million more than it did in January.
Last week, Judge Liman rejected arguments from groups fighting the congestion pricing tolls. He previously refused to halt the start of the tolls while cases played out in court.
The federal attorney's memo suggested Duffy should try to stop congestion pricing by simply saying budget priorities have changed.
Read the full memo
SDNY on congestion pricing by CBSNewYork Scribd on Scribd
