Say it ain’t so, Don!
The Trump administration, cloaking itself in the mantle of concern for the “working class,” has withdrawn the Biden-era federal approval for congestion pricing, cutting funding for billions of dollars in repairs to the region’s lifeblood transit system — but the White House move was immediately challenged by a suit by the MTA in federal court.
In a letter sent by U.S. DOT Secretary Sean Duffy to Gov. Hochul — first handed out to the Post — the White House revealed that it would pull the congestion pricing approval, granted by the Biden administration under a 34-year-old federal tolling program called the Value Pricing Pilot Program.
The withdrawal of approval quickly makes good on President Trump’s signature campaign promise to “terminate” the toll, though he was unable to do it in his “first week” as he posted on social media back in May.
“I share the President’s concerns about the impacts to working-class Americans who now have an additional financial burden to account for in their daily lives,” Duffy wrote, referring to the $9 toll that drivers pay to enter Manhattan below 60th Street. The letter does not refer to the millions of working-class subway, bus and commuter rail users who will benefit from the capital repairs that were already being financed by congestion pricing since its Jan. 5 launch.
In fact, Duffy sided squarely with drivers, who are, on average, wealthier than their transit using neighbors, with an attack on the very premise of congestion pricing, which sought to rebalance the societal cost of driving.
“The revenues generated under this pilot program are directed towards the transit system as opposed to the highways,” he wrote. “I do not believe this is a fair deal.”
Within an hour of the U.S. DOT press release on the Duffy letter, MTA Chairman and CEO Janno Lieber put out his own broadside.
“Today, the MTA filed papers in federal court to ensure that the highly successful program – which has already dramatically reduced congestion, bringing reduced traffic and faster travel times, while increasing speeds for buses and emergency vehicles – will continue notwithstanding this baseless effort to snatch those benefits away from the millions of mass transit users, pedestrians and, especially, the drivers who come to the Manhattan Central Business District,” he said. “It’s mystifying that after four years and 4,000 pages of federally supervised environmental review – and barely three months after giving final approval to the Congestion Relief Program – U.S. DOT would seek to totally reverse course.”
In court papers, the MTA argued that congestion pricing is settled law.
“Despite its obvious success, however, the Trump Administration has precipitously — and for blatantly political reasons — purported to ‘terminate’ the program, as then-candidate Trump proclaimed he would do in his first week in
office. The Administration’s efforts to summarily and unilaterally overturn the considered determinations of the political branches — federal, state, and city — are unlawful, and the Court should declare that they are null and void.”
In a post on his own social media network, Trump praised himself and crowned himself a monarch:
Gov. Hochul responded with a statement of her own:
“We are a nation of laws, not ruled by a king,” she said. “The MTA has initiated legal proceedings in the Southern District of New York to preserve this critical program. We’ll see you in court.” (At least one city scribe pointed out that Hochul’s statement was rich with irony, given that she had paused congestion pricing in June of her own volition.)
How we got here
The Biden administration’s VPPP agreement with the Hochul administration came after an extensive environmental review ordered up by the same Department of Transportation Duffy now heads.
But the Trump administration takes a very different view of what is permitted under the VPPP, which was created in 1991 to “encourage implementation and evaluation of value pricing pilot projects to manage congestion on highways through tolling and other pricing mechanisms,” according to the website of the Federal Highway Administration.
The Biden-era U.S. DOT allowed New York’s congestion pricing to become the first “cordon” tolling program in the nation — but Duffy’s letter revealed that he is choosing to reinterpret that approval based on his view of the VPPP.
Congestion pricing, he wrote, “is not an eligible ‘value pricing pilot program'” because cordon pricing “provides no toll-free option for many drivers who want or need to travel by vehicle in this major urbanized area” and because he believes that the primary goal of congestion pricing was to raise revenue for the Metropolitan Transit Authority, “but the toll rate that is set under VPPP should not be driven primarily by revenue targets.”
Breaking down those two reasons to legalese, Duffy believes that Congress has only “authorized cordon pricing on the Interstate System where drivers can choose a non-Interstate route. But no statute contemplates cordon pricing in a situation where tolls are inescapable, and FHWA has never before approved a VPPP program that uses cordon pricing or that does not provide a toll-free option. I have concluded that Congress did not authorize the unprecedented and consequential step of cordon pricing.”
Duffy cited one of the lawsuits against congestion pricing to bolster his argument, though no congestion pricing suit has yet been successful (except, ironically, the one demanding that Gov. Hochul initiate it after her June 5 “pause”).
Duffy took particular aim at the fact that congestion pricing did indeed have a goal of raising $15 billion for repairs to the regional MTA system, which is used by millions of people every day.
“While revenue generation is a necessary outcome of any congestion pricing scheme …, the primary consideration of the toll rates here is to raise revenue for an MTA capital program,” he wrote. “This revenue target for MTA projects artificially drives the establishment of toll rates to the highway users rather than the price needed to reduce congestion. As a result, highway users … within the priced zone are burdened with a price that is set to raise certain amounts of revenue for MTA capital projects rather than a price that is necessary to have an impact on congestion.”
Duffy admitted that the goal of improving the transit system “may eventually affect roadway congestion,” but added that he had to reject that concept simply because “there is no indication that the tolls were set in order to achieve these attenuated effects.”
“I have concluded that VPPP does not authorize tolls that are calculated based on considerations separate from reducing congestion or advancing other road-related goals,” he wrote.
The MTA disputed that in its court papers: “Traffic congestion and public transit are inextricably linked: to reduce traffic, the region needs to improve the reliability of its transit system, which is chronically underfunded and in need of capital investment.”
On the larger issue, the MTA argues simply that a new administration does not have the legal right to withdraw a previously granted VPPP agreement.
“Neither the VPPP agreement nor applicable law or regulations permit FHWA to
unilaterally terminate the VPPP Agreement,” the MTA’s lawyers argued. “This makes good sense. If FHWA had the right to unilaterally terminate a VPPP program that had already been approved and implemented, it would create uncertainty around the future of such programs any time leadership at FHWA, U.S. DOT, or the White House changed — uncertainty that may make it difficult to issue bonds for other projects and would clearly undermine the purposes of the VPPP.”
Whiners and losers
New Yorkers will be particularly infuriated that Duffy and Trump are siding with New Jersey, whose governor called on (literally) President Trump to end congestion pricing, over New York, whose governor asked the president to keep the increasingly popular program.
“New Jersey Gov. [Phil] Murphy expressed significant concerns about the impacts that the imposition of tolls,” Duffy said.
Meanwhile, local reaction was swift.
“Another day, another direct Trump assault on NYC,” state Sen. Zellnor Myrie said on Twitter. “Congestion pricing is working — and is critical for the investments we need to make in our public transit system. We need leadership that’s not afraid to stand up for us, or stand up against Donald Trump.”
What happens now is not 100 percent clear. It is likely that the Hochul administration will sue, arguing that withdrawal of a VPPP agreement is itself illegal, as Streetsblog has reported.
State Sen. Andrew Gounardes threatened a lawsuit.
“We will fight this decision and we will see you in court,” he said in a statement.
“By blocking this successful policy, Trump will be directly responsible for more traffic, more crashes, more polluted air, slower buses and less funding for our transit system,” he continued. “This means no new station elevators for elderly and disabled riders, and no new subway signals to speed up commutes for working New Yorkers. Congestion pricing was put in place after years of careful study, and early results show it’s worked to reduce traffic and speed up commutes for drivers and bus riders. The Trump administration may claim to care about the working class, but this ridiculous, backwards decision to kill a successful program will hurt all New Yorkers.”
For now, Duffy said the cameras need to be shut off soon. “The FHWA will contact New York State DOT and its project sponsors to discuss the orderly cessation of toll operations under this terminated pilot,” he wrote.
Neither the MTA nor Gov. Hochul had an immediate comment.
Sara Lind, co-executive director of Open Plans, suggested that our nation’s democracy is on fragile ground.
“The program was passed into law through democratically legitimate mechanisms, courts have repeatedly upheld congestion pricing after legal challenges, and they will do so again now,” she said. “Any attempt by Donald Trump to dismantle it is not only misguided and will prove unpopular, but also oversteps his legal authority. We can’t let political gamesmanship stand in the way of cleaner air, less traffic, and better transit options for New Yorkers.”
Ben Furnas, the executive director of Transportation Alternatives, also attacked the Trump administration’s intercession on what is a local toll.
“This is an assault on common sense and New York’s autonomy,” he said in a statement.
Read Sec. Duffy’s letter here.
