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There was a discussion last week about the DOT vs MTA case re congestion pricing and there's an interesting new update. DOJ attorneys intended to upload a letter to the courts to Judge Liman regarding their expectations for documents added to the administrative record.
Unfortunately it appears they made a mistake and accidentally sent an internal letter meant for Erin Hendrixson, the senior trial attorney at the DOT regarding his apparent request for litigation risk in this case and it is quite revealing.
The three DOJ Assistant United States Attorneys internally seem unconvinced that the FHWA (federal highway administration) cancellation by Secretary Duffy is in accordance with law and thus is unlikely to be upheld by the judge.
Here's some choice bits
...
They also highlight an alternative strategy for cancellation since they believe this current one is likely to fail. Instead of termination as a matter of statutory construction, they suggest an attempt at the change-in-position doctrine instead. That method could be a difficult sell too given the above bit about not having much written justification on the matter. The change-in-position doctrine requires a "reasoned explanation" for the decision and must consider "serious reliance issues" of regulated parties and must not be arbitrary or capricious, which would be hard to do with the current lack of written justification for their decision so they'll likely go through the internal decision making process for it first.
It is not possible to perfectly predict the decisions of Judge Liman and the respective agencies, but the internal memo at least suggests the DOT believes it is fighting an uphill battle, one that it is unlikely to win on the current merits. They also haven't sought a preliminary injunction against the MTA yet (explanation here for why the onus is on the DOT)) and the slow response would reflect this internal lack of confidence if they feel they can't reach the bar required for one. Some unrelated legal scholars have also commented on the case suggesting the DOT was unlikely to win and that the fight (if Duffy and Hochul wishes to drag it out) could inevitably end up at the Supreme Court.
Currently at least the MTA seems poised to win the case that this particular attempt was unlawful by the DOT, and in response to this likelyhood it appears the DOT is planning some alternative options it hopes will be more defensible under existing law.
One final note ironically NEPA, the same regulation that ended up with a 4,007 page document (thanks in part to New Jersey's challenges) impeding the implementation of congestion pricing for three years might also kick in with this strategy, forcing a new NEPA analysis by the DOT for termination of the program. Will the villain of the congestion pricing storyline from the early 2020s become its hero in the mid 2020s?
Absurd violation of states’ rights. Trump made the smart call on abortion, let states experiment with congestion schemes if they want.
Too late for that. If we're going to switch back to "states rights", it has to be for a Red issue or it doesn't look like "state's rights" but rather "who/whom".
It is a red issue. If congestion pricing is so terrible, NYC will suffer and, as in California with Texas, red states will benefit from an influx of investment and tax revenue.
Obvious sophistry. It's a way to get people from outside the city to pay for NYC transit unions.
I don't understand why you're presenting this like a bad thing. NYC citizens pay taxes to create a city that people want to come to. What's wrong with them instituting an entrance fee for out-of-towners that would be freeloading otherwise?
There is this thing called the Constitution that does ban discrimination against citizens of another US state.
That's really not what the equal protection clause means. Being a resident of a state or city gets you cheaper or free access to public services like museums and universities. Why not roads?
Interstate commerce.
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This is equally applicable to folks from Islip.
Hell, it's applicable to people from Queens.
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This is leaves out its genuine major benefit. Most urban planning studies show that people will adapt to whatever transit conditions are present, and the impact of induced demand is quite real. Freeway lane expansion in the long term, counterintuitively, doesn’t much reduce congestion and usually slightly increases vehicle miles traveled. Congestion pricing could* be a wonderful tool to help steer more people to mass transit, which is more than sensible in the single-most population dense city in America.
*The problem with this in NYC (and other Democrat-run large cities) is that a number of liberal policies spanning decades, from the courts banning involuntary commitment in all but the most severe cases, to more-recently a pronounced aversion to policing quality of life violations in public spaces, has made public transit deeply unpleasant.
I suppose. But I also really don't want to be "steered" in this one manner. They almost entirely lack pull incentives to make me voluntarily want to use mass transit. So instead they use push incentives that are naked attacks on suburbanites by urban enthusiasts. I notice how disgusted they are by me and my lifestyle and wish to avoid the punishments they have in store for me.
If you like the suburbs so much then don't go to Manhattan, nobody is forcing you to do so.
Someone here recently criticized drivers for "selfishly trampling" on this shared infrastructure by driving their kids to school. You have the opinion that these roads are not for use by suburbanites.
A tiny portion of my taxes are spent on roads. Having paid my taxes, I feel entitled to use of public roads and entirely unsympathetic to people saying my use of public roads is actually bad.
Every now and then I get roped into visiting the nearest major city for some reason. No one can rightfully tell me to keep in the suburbs or block my use of public streets.
And I notice the contempt and sometimes hatred new urbanists have for suburbanites. I'll not pretend anti-suburban policy is neutral and just coincidentally harms me. They declare me prospering to be a negative externality and propose suitable Pigouvian taxes to correct the problem. They cannot make me want to live in an apartment downtown or ride a train to work. But they could possibly make me too poor to live any other way.
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What benefit? Less congestion? We won't see such a benefit.
What urban planners call "induced demand" is simply "pent-up demand"; the roads were so oversubscribed that when a new lane or road opens of course it is still at LOS F. The demand wasn't caused by the road; it was caused by the useful things along the road.
Why? It seems unlikely that car journeys are immune to price signals.
Elasticity of demand is very low.
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That is obviously false as seen by the actual massive drop in traffic after the congestion pricing scheme went on.
The major beneficiaries were the tradesmen that bill $150/hr and more than saved paying the fee and chopping 20-40minutes of driving off their day.
The drop doesn't look particularly massive to me at least looking at the NY/NJ MTA ezpass data for January for traffic through Lincoln and Holland tunnels. 2025 is about 7% lower 2024. Adjusting for the number of non-winter-break weekdays in Jan 2024 vs Jan 2025, I'd estimate that the actual drop in traffic is more like 10%. Still, not exactly a huge effect on traffic volume - but that 10% lower traffic volume leads to quite a bit more than a 10% drop in the time vehicles spend on Manhattan roads.
Side note: the ability to embed graphs would be super nice.
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Since they were declaring victory in the first week of the year (always lighter traffic than usual, and with a snowstorm, no less) based on comparing cherrypicked routes on those days to similar days during more normal commute periods, I know they will lie about this and claim a massive drop in traffic regardless of what actually happens.
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Until they get sick of riding in urine soaked public transit with drug addicted homeless people. I mean there’s a reason why no one wants to ride public transit and it ain’t the cost. My city has voted on expanding it all the time no one wants it.. They don’t want the crime, the drugs, the smell.
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Mass transit is so much more efficient at moving people through dense areas. There is certainly demand for transit, but in a healthier society it does not have to be by car. The original plans for federal interstates accounted for this and were supposed to be bypass routes. You are correct about a potential lack of reduction in congestion, only because public transit in NYC is so off-putting an experience. There are no strangers having dissociative episodes in one’s car. Europe and Asia’s more successful mass transit systems absolutely have resulted in less urban congestion than our car culture.
Mass transit, which is typically ambiguously defined, is only better at moving people where the system operates in a hub and spoke system.
If everyone goes to a place for work and then goes home, mass transit is awesome if the place for work is all the same.
However, if there is slight divergence, mass transit loses spectacularly on time. It often even loses spectacularly on price when public subsidies are factored in.
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It's efficient at moving large numbers of people who are coming from the same place and going to the same place. It's pretty terrible at anything else.
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