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Notes -
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?
"Oops. Looks like I, a career bureaucrat, accidentally foiled the Republican executive I derive all my authority from yet again. I sure hope these accidents don't keep happening every time a Republican is elected president."
I get what you're trying to imply but the leak itself isn't likely to be that meaningful legally given the Trump admin is already internally iffy on the case's chances anyway. If they likely were going to lose regardless then this is just a nail in an already sealed coffin. Therefore if there was an intentional leak this was a rather weak document to risk anything over.
Just like terrorism isn't optimized for either number of deaths or political change, deep state political activism isn't optimized for political change. All that's necessary is that it was leaked by a single true believer, rather than on orders from a political organization. True believers would just want to expose Trump as much as they can, and not think very strategically.
And even organizations can be subject to groupthink and fanaticism at times.
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My exact conclusion. Come on, you've got these files right next to each other with close enough names to fuck this up? It stretches the limits of credibility.
Does MTA get to use this as evidence now? Yeesh.
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