Lawyers with the Department of Justice accidentally filed a document overnight that outlined a series of legal flaws with the Trump administration’s plan to kill New York City’s congestion pricing tolls.
In an 11-page letter to the Department of Transportation, lawyers with the U.S. Attorney’s Office for the Southern District of New York wrote that Secretary of Transportation Sean Duffy’s attempt to terminate congestion pricing faces “considerable litigation risk” and is “unlikely” to be accepted by the court.
“As discussed below, 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,” the letter said.
According to DOJ lawyers, both of Duffy’s arguments for canceling the program — that the tolls raise revenue rather than prevent congestion and that the program does not offer a toll-free option — are unlikely to convince the court.
DOJ lawyers instead proposed an alternative justification to defend canceling the program, urging the Department of Justice to use regulations set by the Office of Management and Budget to say the program was canceled “as a matter of changed agency priorities.”
“Importantly, DOT can seek termination of the agreement pursuant to the OMB regulations in addition to, and not in place of, defending the rationale laid out in the Secretary’s letter,” the letter said.
In a letter to the judge overseeing the lawsuit challenging congestion pricing, DOJ lawyers on Thursday morning acknowledged the document was “plainly filed in error” and asked to permanently seal the record. They argued the internal legal guidance included in the letter is privileged and should not be considered in the ongoing lawsuit.
A spokesperson for the U.S. Attorney’s Office for the Southern District of New York said the filing was an “honest error.”
“Unfortunately, an attorney-client privileged document was erroneously filed on the public docket last night,” the spokesperson said in a statement Thursday. “This was a completely honest error and was not intentional in any way. Upon realizing the error, we immediately took steps to have the document removed. We look forward to continuing to vigorously advocate in the best interest of our clients, the DOT and FHWA, in this matter.”
The Metropolitan Transit Authority’s congestion pricing program, the first of its kind in the nation, went into effect in January. Weeks later, with Donald Trump now in office, the Federal Highway Administration terminated approval of the plan, with Duffy saying at the time that the “scope of this pilot project as approved exceeds the authority authorized by Congress.”
In February, the Metropolitan Transit Authority sued over the Trump administration’s attempt to rescind the agreement between the Federal Highway Administration and MTA that authorized the collection of the congestion toll. Lawyers for the MTA argued the termination was unlawful, contradicts the DOT’s own publicly stated policies and seeks to end a program that benefits the public.
“The region’s subways, buses, and commuter railroads — vital lifelines for so many New Yorkers who live in the New York City metropolitan area and beyond — are already benefiting from substantial investments that have been made as a result of the Program,” they argued. “New Yorkers support the Program because it is working.”
New York officials have said they will not turn off the tolls without a court order.
The congestion pricing plan charges passenger vehicles $9 to access Manhattan below 60th Street during peak hours as part of an effort to ease congestion and raise funds for the city’s public transit system. During peak hours, small trucks and charter buses are charged $14.40 and large trucks and tour buses pay $21.60.
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