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Defenders of Congestion Pricing Say Plaintiffs Too Late and Environmental Justice Is Not Law

by Matthew Russell Lee, Patreon Book Substack

SDNY COURTHOUSE, May 17 –  Lawsuits against New York City's congestion pricing plan were heard on May 17 by U.S. District Court for the Southern District of New York Judge Lewis J. Liman. Inner City Press was there and live tweeted. Thread:

Judge Liman: what assurance are there? If a state decided we want to sell off land to generate money for mining, you're not required to consider the alternate of selling half or a quarter?  Federal Highway Administration lawyer: Right. Often only the project itself is considered. 

 Judge Liman: We know that from time to time the people who administer the highway increase the toll, or change the lanes - changes can happen that would impact traffic flows. Is that re-evaluated?  Federal Highway Administration lawyer: It's flexible... Battery Park City was assessed - four of the 102 intersections, we find no adverse impact on West Street. Plaintiffs focus on Tolling Scenario A, that it would push more traffic diversions to the Holland Tunnel

  Judge Liman: Are you saying the diversion would be rare?  FHA lawyer: More than on other scenarios. COVID resulted in less traffic, now there's more  Now MTA lawyer: The NYC area has the worst congestion in the country, despite having the most extensive public transportation system. This program will benefit the CBD [Central Business District]

Judge Liman: It will increase traffic in some areas? MTA: That's true MTA lawyer: The Battery Park City plaintiff brought a NEPA lawsuit pro se. Then after the statute of limitation other plaintiffs joined, claims related to other areas of the city. They claim they relate-back, it's an indefinite snowball Judge Liman: See Rule 15

Judge Lewis
                        Liman by Elizabeth Williams courtesy to Inner
                        City Press
Judge Lewis J. Liman by courtesy to Inner City Press

   Judge Liman: If I decide that the appropriate remedy is a remand to the agency for further analysis - it's not infinite. I might rule, you have to do an EIS before the project - that could provide redress.

MTA lawyer: Let me switch to standing  MTA: The Battery Park City residents would actually benefit. Increased traffic on West Street is completely speculative. There is no concrete injury.... Battery Park City is not an environmental justice community.  

MTA lawyer: Plaintiffs can't show timely comments on the EA- Judge Liman: The Public Citizen case is not on point here MTA lawyer: I agree, that was not about late submission. But its holding does mean the plaintiff have to frame their comments for the agency 

Judge Liman: They are saying, We have standing and the agency did not respond. The litigator does not have to be the commentator. Do you dispute it?

MTA lawyer: Their forfeited their issues. They couldn't have relied on others comments, since they couldn't see them  MTA lawyer: In terms of environmental justice, it's not a statutory component of NEPA. Plaintiffs have not challenged mitigation of strictly environmental issues. EJ is a different standard. The mitigation is sufficient.

MTA lawyer: Environmental justice is not statutory, it's just an Executive Order. Judge Liman: So it's not subject to APA review? MTA lawyer: No, the majority of circuit say it's subject to arbitrary and capricious review. "Institutional racism et cetera" Judge Liman: We're back. Defendants first.

 AUSA: I'm counsel for the Federal Defendants: the first claim is time barred. The second, the NEPA failure to supplement claim is not ripe yet.  

 Inner City Press will report the results - including in the New Jersey case(s)


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