Federal congestion pricing lawsuit 'unlikely' to succeed, DOJ lawyers say in mistakenly public letter

In a letter between federal attorneys not meant to be made public, Department of Justice lawyers picked apart the Trump administration's legal arguments against New York’s congestion pricing plan, which they say are "unlikely" to be accepted by a judge. It instead offered an alternative way to "properly terminate" the plan under federal guidelines.

The letter sent by Department of Justice lawyers to the Department of Transportation prompted a harsh statement from the DOT, who accused the lawyers of "legal malpractice," in a statement to Newsday, though the DOJ said it was unintentional, according to media reports.

The April 11 letter, which posted Wednesday night, was included among legal filings in an ongoing lawsuit between the Trump administration and the Metropolitan Transportation Authority. It outlines the "considerable litigation risk in defending" Transportation Secretary Sean Duffy’s decision to rescind federal approval of congestion pricing. The first-in-the-nation program began charging most vehicles $9 for driving at or below 60th Street in Manhattan in January. Duffy's decision came in February, though the cameras have remained on.

According to the letter, "it is unlikely that [U.S. District Judge Lewis Liman] or further courts of review will accept the argument" that the MTA’s congestion pricing plan was improperly authorized by President Joe Biden’s administration because it does not offer a toll-free option to enter Manhattan’s congestion relief zone, and because the plan has the goal of raising revenue for the MTA in addition to reducing congestion.

MTA Chairman and CEO Janno Lieber, talking to WNYC public radio Thursday, declined to say much about the letter.

"When someone does something accidental, it isn’t a topic of discussion," Lieber said. "It’s now in front of a judge. So we’re going to let the legal process, the federal judge in the Southern District, decide whether they’re right or we’re right. We’re very confident in our position. And whatever they’re saying internally is not where my head is focused."

A statement attributed to an unnamed DOT spokesperson suggested that Department of Justice lawyers may have acted intentionally in posting the memo.

"Are SDNY lawyers on this case incompetent or was this their attempt to RESIST?" the statement said. "It’s sad to see a premier legal organization continue to fall into such disgrace."

Officials with the U.S. Attorney's Office for the Southern District of New York did not respond to requests for comment, but office spokesman Nicholas Biase told The New York Times that the inclusion of the confidential memo in the court filing "was a completely honest error and was not intentional in any way." The document has since been sealed from the public, court records show.

A DOT spokesperson told Newsday in a statement that the U.S. Attorney's Office in New York’s Southern District is now "off the case" and that the DOJ’s Civil Division is "taking over."

The Department of Transportation also said the letter "doesn’t represent reality" and called congestion pricing "unprecedented and illegal."

Federal transportation officials have set a new deadline of May 21, after which they say they will halt various federal approvals, projects and programs.

The federal lawyers wrote in the letter that they "have been unable to identify a compelling legal argument to support" the position that the MTA’s specific congestion pricing plan is not authorized under federal law. And they noted that the Federal Highway Administration, in previous legal filings in this same lawsuit, has acknowledged that the tolling program’s goals "are two-fold, reducing traffic congestion ... and funding capital projects."

The three assistant U.S. attorneys who authored the letter also noted Duffy, in rescinding federal approval for the plan, cited legal arguments raised by the Town of Hempstead in its ongoing lawsuit against congestion pricing. It is "very unlikely" that courts would agree with those arguments, the DOJ lawyers wrote.

However, the letter outlines another potential path to stopping the toll program: through federal Office of Management and Budget regulations "concerning the termination of cooperative agreements." Using the same legal arguments, the DOT could kill the program "as a matter of changed agency priorities rather than arguing [the tolling plan] was not statutorily authorized in the first instance."

Trump, a vocal opponent of congestion pricing, has vowed to terminate the program since he campaigned for office. Although his administration withdrew approval for the plan in February, the MTA has ignored the decision and two deadlines set by the Trump administration to take down congestion pricing. The agency said it will continue charging the tolls unless a judge orders otherwise.

Danny Pearlstein, spokesman for the Riders Alliance, a transit advocacy group, said in a statement that the Trump lawyers’ letter "screams the quiet part loud."

"The feckless feds have no case against New York's immensely successful congestion relief program," Pearlstein said.

By Alfonso A. Castillo

alfonso.castillo@newsday.com@alfonsoreports

Alfonso Castillo has been reporting for Newsday since 1999 and covering the transportation beat since 2008. He grew up in the Bronx and Queens and now lives in Valley Stream with his wife and two sons.