Metropolitan Transportation Authority et al v. Duffy et al

Filing 1

COMPLAINT against Sean Duffy, Federal Highway Administration, Gloria Shepherd, United States Department of Transportation. (Filing Fee $ 405.00, Receipt Number ANYSDC-30641885)Document filed by Metropolitan Transportation Authority, Triborough Bridge and Tunnel Authority. (Attachments: #1 Exhibit A - VPPP Agreement).(Kaplan, Roberta)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
METROPOLITAN TRANSPORTATION
AUTHORITY and TRIBOROUGH BRIDGE AND
TUNNEL AUTHORITY,
Plaintiffs,
v.
SEAN DUFFY, in his official capacity as Secretary of
the United States Department of Transportation,
GLORIA M. SHEPHERD, in her official capacity as
Executive Director of the Federal Highway
Administration, UNITED STATES DEPARTMENT
OF TRANSPORTATION, and FEDERAL HIGHWAY
ADMINISTRATION,

Case No. ___________________
COMPLAINT

Defendants.
Plaintiffs the Metropolitan Transportation Authority (“MTA”) and Triborough Bridge and
Tunnel Authority (“TBTA”) file this complaint against Defendants Sean Duffy, in his official
capacity as Secretary of the United States Department of Transportation, Gloria M. Shepherd, in
her official capacity as Executive Director of the Federal Highway Administration, the United
States Department of Transportation (“USDOT”), and the Federal Highway Administration
(“FHWA”), and allege as follows:
INTRODUCTION
1.

On January 5, 2025, the State of New York embarked on a bold new program to

reduce traffic congestion in the New York City metropolitan area and fund and promote mass
transportation with the Central Business District (“CBD”) Tolling Program (“Program”), also
known as Congestion Pricing, a market-based, user-pay solution that has seen success in major
cities around the world. The Program accomplishes its aims by tolling eligible vehicles entering

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the CBD in order to encourage mass transportation and using that money to support the City’s
transportation infrastructure. In a matter of weeks, the Program has already achieved remarkable
results: traffic congestion and commute times have materially fallen; more people are visiting
Manhattan’s commercial districts and supporting the region’s businesses; and the MTA’s vital mass
transit system is seeing the benefit of increased funding. 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.
2.

The Manhattan CBD is one of the most congested urban areas in the country, where

travel times had been extraordinarily slow for decades. Indeed, the term “gridlock” was invented
right here in Manhattan. Congestion in the CBD has been a $20 billion annual drag on the regional
economy, and thus the national economy, as well. For over 50 years, New York state and local
officials, policy experts, and advocacy groups have studied various solutions to identify the most
effective way to reduce congestion, which results in lost productivity, poor air quality, slower and
less reliable bus service, delayed emergency response times, and reduced public safety, among other
harmful conditions. That extensive deliberation led to the consensus that congestion pricing—
charging vehicles to drive in highly congested areas and providing a dedicated source of funding
for public transit for the metropolitan area—is the most effective tool to achieve that goal. That
expert consensus also makes good common sense. 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.

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In April 2019, the New York Legislature and then-Governor Andrew Cuomo

passed the Traffic Mobility Act (“TMA”), a landmark statute with the goal of reducing traffic
congestion in the CBD and creating a dedicated funding source for the MTA’s capital needs.
N.Y. Veh. & Traf. Law § 1701 et seq. The TMA authorized and directed TBTA, the MTA’s
independent affiliate, to establish and operate a congestion pricing program, including tolling of
eligible vehicles entering or remaining in the CBD, and earmarked the revenues from the Program
for the MTA’s 2020-2024 Capital Program (the “Capital Program”) and subsequent capital
programs.
4.

Several months later, in June 2019, New York State, through the New York State

Department of Transportation (“NYSDOT”), TBTA, and the New York City Department of
Transportation (“NYCDOT”) (collectively, the “Project Sponsors”), submitted to FHWA an
Expression of Interest for authority to assess tolls on vehicles entering the CBD under the federal
Value Pricing Pilot Program (“VPPP”). The VPPP is a program created by Congress under which
FHWA may authorize tolling of federal aid highways to reduce roadway congestion and improve
air quality, including through congestion pricing strategies. It has been used across the country to
authorize tolling to reduce congestion, improve the environment, and raise funds.
5.

Pursuant to the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et

seq., FHWA was required to evaluate the potential environmental effects of the Program,
including—as directed by a former Executive Order that has since been revoked by President
Trump—the Program’s potential to have a disproportionately high and adverse impact on minority
and low-income (i.e., environmental justice, or “EJ”) populations and communities that have preexisting pollution and health burdens due to historic transportation and land use decisions.

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Following a multi-year environmental review process from 2019 into 2023 that

yielded an administrative record of more than 45,000 pages, FHWA and the Project Sponsors
prepared a 958-page Final Environmental Assessment (“Final EA”), followed by a Finding of No
Significant Impact (“FONSI”) and two Re-Evaluations, which determined that the Program would
not have a significant adverse impact on the environment or a disproportionately high and adverse
impact on EJ communities in light of (1) the anticipated reduction of overall vehicle miles traveled
(“VMT”) and vehicular emissions in the region, and (2) the Project Sponsors’ commitment to a
robust, $155 million mitigation package to improve air quality and public health in EJ communities
which have pre-existing pollution and health burdens and could receive traffic diversions as a result
of the Program.
7.

On November 21, 2024, FHWA executed the VPPP Agreement with the Project

Sponsors, see Exhibit A, which authorized the Program’s collection of tolls and required (among
other things) implementation of the Project Sponsors’ mitigation commitments and regular reports
to FHWA on the Program’s effects.
8.

The Program went into effect on January 5, 2025, and eligible vehicles entering the

CBD are being tolled in accordance with the toll rate schedule adopted by the TBTA Board and
authorized in the VPPP Agreement. Already, preliminary data for January 2025 (and simply
looking at the roads) show that the Program is working.
9.

Traffic congestion and travel times are down substantially, making commutes more

efficient. Almost 1.2 million fewer vehicles entered the CBD in the month of January than would
be expected without the Program. Crossing times were 17% faster at the Lincoln Tunnel and 48%
faster at the Holland Tunnel in January 2025 compared to January 2024. Trip times on the
Williamsburg Bridge and Queensboro Bridge have been 30% faster. Drivers are saving on average

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20 to 30 minutes driving into the CBD. Within the CBD, weekday daytime travel speeds were 14%
faster during the second week of the Program, and 12% faster in the third week. Weekend daytime
travel within the CBD was 15% faster during the second week of the Program, and 18% faster
during the third week. Meanwhile, more people are taking mass transit options. Compared to
January 2024, weekday bus ridership has grown by 7%, and weekend express bus ridership is up
21%. Ridership on the MTA’s two commuter railroads, the Long Island Rail Road and MetroNorth Railroad, was up by 11% and 7% respectively in January 2025, as compared to January 2024.
Similarly, subway ridership has grown by 7.3% on weekdays and 12% on weekends.
10.

Businesses are benefiting from the Program as well. Crain’s New York Business

reports that more people visited the Business Improvement Districts (“BIDs”) within the CBD in
January 2025 than during the same month last year, noting a 4.6% year-over-year increase in
visitation. 1 Indeed, while vehicle traffic may be down in Manhattan, Gothamist notes, “pedestrian
traffic is up.” 2 Data from the Broadway League, meanwhile, shows that there was a 17% increase
in attendance for Broadway theatre performances in January 2025, as well as a 25% increase in
gross revenue. 3
11.

Business leaders have voiced their support for the Program, recognizing the

benefits of Congestion Pricing for businesses in the CBD and the broader economy. Greater New
York Chamber of Commerce CEO Mark Jaffe has stated that the Program “will improve the quality

1

Caroline Spivack, Business Foot Traffic Is Up Within the Congestion Pricing Zone, CRAIN’S N.Y. Bus. (Feb. 5,
2025), https://www.crainsnewyork.com/transportation/congestion-pricing-zone-business-foot-traffic.

2
Arun Venugopal, Vehicle Traffic is Down in Manhattan, But Pedestrian Traffic Is Up, Data Says, GOTHAMIST
(Feb. 13, 2025), https://gothamist.com/news/vehicle-traffic-is-down-in-manhattan-but-pedestrian-traffic-is-up-datasays.
3

Gersh Kuntzman, Wind in Their Sales: Congestion Pricing Is No ‘Toll’ on the Broadway Box Office, STREETSBLOG
NYC (Feb. 5, 2025), https://nyc.streetsblog.org/2025/02/05/wind-in-their-sales-congestion-pricing-is-no-toll-on-thebroadway-box-office.

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of life in Manhattan for all who live, work and visit,” and that decreased traffic from the Program
“should decrease labor time and improve the efficiencies of getting essential commodities onto the
shelves.” 4 The Partnership for New York City, a non-profit group of New York business leaders,
has likewise voiced its support for the Program, pointing out that it could reduce “an estimated $20
billion that excess congestion costs annually because of more efficient and timely movement of
people and goods, which will increase productivity and reduce expenditures on fuel and time.” 5
More recently, the Partnership for New York City’s President & CEO Kathryn Wylde stated that,
“[i]n every respect, this is a policy that President Trump and the Republicans should be
supporting.” 6
12.

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. In particular, key
tenets of the Capital Program include improving outdated signaling and other equipment to increase
system reliability; improving safety and customer service through technology; and extending public
transit to under-served areas. Program revenue will also be used to update and renovate numerous
subway stations consistent with the Americans with Disabilities Act, by building new elevators at
70 stations across the boroughs and replacing up to 65 escalators and 78 elevators—bringing the
transportation system to greater than 50% accessibility.

4

New York’s Chamber (@NYChamber), X, (Nov. 15, 2024, 3:29 PM),
https://x.com/NYChamber/status/1857521387583451602.

5

Louisa Chafee, Andrew Rein, & Kathryn Wylde, Op-ed: Congestion Pricing Will Be a Boon for New York,
PFNYC.ORG (Nov. 14, 2014), https://pfnyc.org/news/op-ed-congestion-pricing-will-be-a-boon-for-new-york/.
6

Ry Rivard & Nick Reisman, New York’s business boosters push Trump to keep Manhattan tolls, POLITICO (Feb.
11, 2025), https://www.politico.com/news/2025/02/11/new-york-trump-congestion-pricing-00203540.

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Program revenue will also be used to advance the $155 million package of

mitigation for EJ communities, which is designed to address preexisting pollution and chronic
health burdens. These measures will include replacing diesel engines with cleaner technology;
installing electric charging infrastructure for trucks; planting roadside vegetation to improve nearroad air quality; and installing air filtration units in schools near highways.
14.

TBTA has issued debt that is supported by revenues generated by the Program and

by long-term bonds issued partly in reliance on revenues generated by the Program. This includes
no less than $378.8 million in short-term notes currently outstanding to fund infrastructure costs,
and $500 million in short-term notes to fund a portion of the $15 billion of capital projects in the
Capital Program. By the end of the month, TBTA also expects to close a $500 million bank loan
to support the Capital Program, relying on Program revenues as security.
15.

New Yorkers support the Program because it is working. According to a poll

reported by CBS News, the majority of New Yorkers want the Program to continue. 7 On a 2-to-1
basis, New Yorkers say that the Program is working. 8 The Program’s biggest supporters are the
individuals who actually drive into the CBD frequently. 9 Ultimately, 6 out of every 10 New
Yorkers say that President Trump should not take any steps to end the Program. 10
16.

Notwithstanding the extensive evaluations—and now early results—showing that

Congestion Pricing is the best way to reduce congestion in the CBD, reduce overall vehicle
emissions in the greater region, and fund the regional mass transit system, the Program has
continued to have its political detractors, including President Trump. As early as May 2024,
7
Alecia Reid, 6 in 10 Say They Want NYC Congestion Pricing to Continue, New Poll Finds, CBS NEWS (Feb. 5,
2025), https://www.cbsnews.com/amp/newyork/news/new-york-city-congestion-pricing-morning-consult-poll/.
8

Id.

9

Id.

10

Id.

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President Trump posted on “Truth Social” that he would “TERMINATE Congestion Pricing in my
FIRST WEEK back in Office,” and subsequent media reports—from the President and his allies in
Congress—have indicated that the Administration intended to immediately and summarily end
Congestion Pricing to achieve political objectives.
17.

On February 19, 2025, the Trump Administration attempted to do just that.

Specifically, Defendants issued a letter to Governor Hochul purporting to rescind the VPPP
Agreement in an effort to “terminate” the Program (the “Challenged Action”).
18.

The Trump Administration’s efforts to “terminate” Congestion Pricing are

unlawful.
19.

Neither the VPPP Agreement nor applicable law or regulations permit FHWA to

unilaterally terminate the VPPP Agreement. 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, USDOT, 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.
20.

Defendants also provided no basis for FHWA’s abrupt reversal of its position on

the Program, despite having reaffirmed the FONSI and approved the Program only a few months
prior. And, in stark contrast to the nearly four-year process that led to FHWA’s VPPP approval,
Defendants purported to take this agency action in a matter of less than two months, and despite
having conducted no NEPA review of the effects on the environment from ceasing tolling and
reintroducing tens of thousands of additional vehicular trips into the CBD daily, as well as from
termination of the EJ mitigation committed to as part of the Program and to be funded through
Program revenue.

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In short, FHWA’s decision to purportedly terminate the VPPP Agreement is in open

disregard of a host of federal statutes and regulations, not to mention the MTA and TBTA’s rights
under the United States Constitution.
22.

Though the FHWA’s attempt to terminate the Program is clearly contrary to law, it

is perhaps unsurprising given that the Trump Administration has attempted to take a number of
unilateral executive actions that have been challenged in and stopped by the courts. 11 These actions
include attempts to freeze federal funding despite prior Congressional appropriations, to cut funding
from the National Institutes of Health, and to redefine the Fourteenth Amendment’s citizenship
guarantee in a move that one court called “blatantly unconstitutional.”12 In many of these instances,
the effect of the arbitrary or unlawful federal action was to hamstring vital funding sources for states
and localities—regardless of legal commitments the federal government has made. The Trump
Administration’s action here is just the latest example of its disregard for the rule of law.
23.

Termination of the Program is also in direct contrast with the USDOT’s newly

announced policy to “prioritize” projects “that utilize user-pay models,” and recent remarks by
Defendant Duffy that saving people time on their commutes would be part of his mission as

11

See, e.g., Washington v. Trump, No. 25 Civ. 127 (W.D. Wash. Jan. 23, 2025) (ECF 43) (granting temporary
restraining order against Trump Administration’s attempt to redefine the Fourteenth Amendment’s citizenship
guarantee); Casa Inc. v. Trump, No. 25 Civ. 201 (D. Md. Feb. 5, 2025) (ECF 65) (granting preliminary injunction
against Trump Administration’s attempt to redefine the Fourteenth Amendment’s citizenship guarantee); New York
v. Trump, Case No. 25 Civ. 39 (D.R.I. Jan. 29, 2025) (Minute Entry) (granting temporary restraining order against
Trump Administration’s attempts to impose broad “freeze” of federal funding); Nat’l Council of Nonprofits v. Off.
Mgmt. Budget, No. 25 Civ. 239 (D.D.C. Feb. 3, 2025) (ECF 30) (same); Massachusetts v. Nat’l Insts. Health, No. 25
Civ. 10338 (D. Mass. Feb. 10, 2025) (ECF 25) (granting temporary restraining order against Trump
Administration’s attempt to broadly cut research funding from the National Institutes of Health).

12

Josh Gerstein, Judge slams Trump while extending block on birthright citizenship order, POLITICO (Feb. 6, 2025),
https://www.politico.com/news/2025/02/06/judge-slams-trump-birthright-citizenship-00202928. Judge
Coughenour, who has served on the federal bench since being appointed by President Ronald Reagan and confirmed
by the Senate in 1981, stated at a subsequent hearing that “[i]t has become ever more apparent that to our president,
the rule of law is but an impediment to his policy goals. The rule of law is, according to him, something to navigate
around or simply ignore, whether that be for political or personal gain. Nevertheless, in this courtroom and under my
watch, the rule of law is a bright beacon which I intend to follow.” Id.

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Secretary. At a conference of state highway and transportation officials on February 5, 2025,
Defendant Duffy stated that he wanted to commit to create projects that “mak[e] peoples lives
better. What you do makes people’s lives better. We’re able to get to work and back home to see
our loved ones more quickly. If we don’t have our systems that are delayed and we don’t sit in
traffic we get to spend an extra 15 minutes, maybe an extra 45 minutes a day with the ones that we
love as opposed to listening to music or a podcast or, I don’t know what you listen to in the car, but
whatever you’re listening to in the car, or on the train. We can make people’s lives better and spend
time with the people we love as opposed to going to the grind of our transportation system.” 13
24.

In addition to being inconsistent with its own broader policy statements, the Trump

Administration’s efforts to “terminate” the Program are contrary to its purported respect for
federalism. The Program is the first congestion pricing program of its kind in the United States,
and a necessary solution to the unique policy challenges facing the New York metropolitan region
and one that reflects the will of the majority of New Yorkers and their elected representatives at
every level of government. As Justice Brandeis explained nearly a century ago, “[i]t is one of the
happy incidents of the federal system that a single courageous state may, if its citizens choose, serve
as a laboratory; and try novel social and economic experiments without risk to the rest of the
country.” Whalen v. Roe, 429 U.S. 589, 597 n.20 (1977) (quoting New State Ice Co. v. Liebmann,
285 U.S. 262, 311 (1932) (Brandeis, J. dissenting)). President Trump claims to embrace this
philosophy and has even pledged, in his own signature way, to “make states the laboratories of
democracy once again.” 14 In his first inaugural address, President Trump declared that “we are not
13
Sean Duffy, U.S. Secretary of Transportation Sean Duffy speaks at the American Association of State Highway and
Transportation Officials 2025 Washington Briefing, U.S. Dep’t of Transp. (Feb. 5. 2025),
https://www.transportation.gov/briefing-room/us-secretary-transportation-sean-duffy-speaks-american-associationstate-highway-and.
14

Michael Stratford, Trump Endorses States’ Rights – but Only When He Agrees With the State, POLITICO (Apr. 2,
2018), https://www.politico.com/story/2018/04/02/trump-states-rights-education-sanctuary-drilling-492784.

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merely transferring power from one administration to another, or from one party to another, but we
are transferring power from Washington, D.C., and giving it back to you, the American people.” 15
And Defendant Duffy, shortly after being confirmed as Secretary of Transportation, recently
committed to not interfering with state transportation initiatives, saying at a conference of state
highway and transportation officials: “I think that you guys know how to do your jobs, and I think
we should rethink the way we’re doing business together by giving you all a lot more autonomy
and a lot more authority, a lot more freedom to do the projects that you know are important in your
communities.” 16 Yet the Trump Administration’s efforts to end the Program, when most New
Yorkers believe he shouldn’t interfere, are directly contrary to those promises.
25.

To be clear, while the Trump Administration has purported to unlawfully terminate

the VPPP agreement, its actions—as a mere signatory to a multi-party agreement—obviously do
not require Plaintiffs to cease operation of the Program. The status quo is that Congestion Pricing
continues, and unless and until a court orders otherwise, Plaintiffs will continue to operate the
Program as required by New York law.
26.

Plaintiffs bring this action solely for a declaratory judgment that the Trump

Administration’s purported termination of the VPPP Agreement is null and void, and for an order
vacating the Challenged Action.
PARTIES, JURISDICTION, AND VENUE
27.

Plaintiff the MTA is a public benefit corporation organized under the laws of New

York and is responsible for North America’s largest public transportation network, serving 15.3

15

Id.

16

Duffy, U.S. Secretary of Transportation Sean Duffy speaks at the American Association of State Highway and
Transportation Officials 2025 Washington Briefing, https://www.transportation.gov/briefing-room/us-secretarytransportation-sean-duffy-speaks-american-association-state-highway-and.

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million people across 5,000 square miles in New York City, Long Island, Southeastern New York,
Northeastern New Jersey, and Southern Connecticut. The MTA has offices in New York, New
York, and is governed by a 23-member board which is coterminous with the board of TBTA.
28.

Plaintiff TBTA is an affiliate of the MTA. It is a public benefit corporation

organized under the laws of New York, with offices in New York, New York. TBTA is a signatory
to the VPPP Agreement and is responsible under New York law for the implementation and
operation of the Program.
29.

Defendant Duffy is the Secretary of USDOT. He is sued in his official capacity.

30.

Defendant Shepherd is the Executive Director of the FHWA. She is sued in her

official capacity.
31.

Defendant USDOT is a cabinet department of the federal government, with offices

in Washington, D.C.
32.

Defendant FHWA is an agency within the USDOT, with offices in Washington,

33.

This Court has subject matter jurisdiction over this action pursuant to 23 U.S.C.

D.C.

§ 1331 because this case presents a federal question under the laws of the United States, including
the United States Constitution and the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et
seq. This Court has remedial authority including pursuant to the APA, 5 U.S.C. §§ 705, 706, the
Declaratory Judgment Act, 28 U.S.C. § 2201 et seq., and Rule 57 of the Federal Rules of Civil
Procedure.
34.

Venue is proper in this district under 28 U.S.C. § 1391(e) because the MTA and

TBTA are headquartered in this district, and because a substantial part of the events or omissions
giving rise to the claims occurred in this district.

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BACKGROUND
A.

New York’s Enactment of Congestion Pricing
35.

Traffic congestion has long plagued the New York metropolitan area. For decades,

congestion has stymied economic growth and harmed the environment and public health, not to
mention the quality of life in the region.
36.

Congestion on New York City roads, and in the CBD in particular, has a serious

negative impact on public health. As the U.S. Environmental Protection Agency has recognized,
higher vehicle traffic leads to higher vehicle emissions, which are associated with negative health
impacts like “asthma onset and aggravation, cardiovascular disease, reduced lung function,
impaired lung development in children, pre-term and low-birthweight infants, childhood leukemia,
and premature death.” 17 FHWA has consistently acknowledged that “less vehicle traffic can
improve air quality and reduce chronic lower respiratory diseases.” 18
37.

Congestion also increases travel times, eroding worker productivity, reducing bus

and paratransit service, raising the cost of deliveries, and impeding the movement of emergency
vehicles. A 2018 study estimated that “traffic congestion [would] be a $100 billion drag” on the
metropolitan-area economy over the next five years, and identified Manhattan below 60th street—
where a quarter of the economic activity is concentrated—as the primary source of traffic
congestion in the region. 19
38.

New York policy makers have considered ways to reduce congestion in the CBD,

17

U.S. ENVIRONMENTAL PROTECTION AGENCY, NEAR ROADWAY AIR POLLUTION AND HEALTH: FREQUENTLY
ASKED QUESTIONS (Aug. 2014), https://nepis.epa.gov/Exe/ZyPDF.cgi/P100NFFD.PDF?Dockey=P100NFFD.PDF.
18

Jhoset Burgos-Rodriguez, et al., Making Healthy Connections in Transportation, 87 PUBLIC ROADS 28 (Summer
2023), https://highways.dot.gov/sites/fhwa.dot.gov/files/Public%20Roads%20Summer%202023.pdf.
19
The Partnership for New York City, $100 Billion Cost of Traffic Congestion in Metro New York, PFNYC.ORG
(Jan. 2018) https://pfnyc.org/research/100-billion-cost-of-traffic-congestion-in-metro-new-york/.

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including tolling programs, for decades. In fact, the idea for congestion pricing was first developed
in the 1950s by Columbia University economist and Nobel laureate William S. Vickrey, who
believed that congestion pricing would be a market-based solution to overcrowding, whether on
subway cars or New York City’s streets.
39.

The last decade has seen further recognition of the benefits that a congestion pricing

program could have for reducing congestion in the city, improving air quality, and raising funds
to improve mass transit. As New Yorkers faced serious mass transit issues in 2017, Governor
Andrew Cuomo raised the possibility of implementing a congestion pricing program that would
help fund improvements to New York City’s transit infrastructure. Governor Cuomo instituted an
advisory panel which recommended a congestion pricing program.
40.

In 2019, the New York State Legislature enacted the TMA, which authorized and

directed TBTA to implement a congestion tolling program in the CBD. N.Y. Veh. & Traf. Law
§ 1701 et seq. The TMA’s legislative findings declare that traffic in New York—which “ranks
second worst among cities in the United States and third worst among cities in the world” and is
estimated to cost the metropolitan economy more than “one hundred billion dollars over the next
five years”—is “crippling ... [for] residents, commuters, taxi and for-hire vehicle traffic, bus transit
and emergency services” and “a significant contributor to decreased air quality.” Id. § 1701.
41.

The Legislature further found that the underfunding of New York City’s aging

subway infrastructure has “a deleterious impact on the health, safety, and livelihood of commuters,
tourists, resident New Yorkers” as well as “the economy of the state of New York,” such that “a
long-term and sustainable solution is necessary in order to ensure stable and reliable funding” for
this “important mass transit asset.” Id. Consequently, the Legislature declared that to ensure the

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“public health and safety of New York’s residents,” the creation of a congestion pricing program
in the Manhattan CBD was “a matter of substantial state concern.” Id.
42.

The TMA authorizes and directs TBTA to “establish the central business district

tolling program,” id. § 1704 (1), grants TBTA the power “to establish and charge variable tolls and
fees for vehicles entering or remaining in the [CBD],” 20 and authorizes TBTA “to make rules and
regulations for the establishment and collection of central business district tolls, fees, and other
charges,” id. § 1704-a (1).
B.

The Federal Value Pricing Pilot Program
43.

Because Congestion Pricing would impose a toll on several federal-aid highways

in Manhattan, the federal government has taken the position that the Program could not begin
without federal approval. Mulgrew v. United States Dep’t of Transp., No. 23 Civ. 10365, 2024 WL
3251732, at *4 (S.D.N.Y. June 20, 2024) (Liman, J.).
44.

Tolls are generally prohibited on federal-aid highways, subject to a number of

exceptions found in federal law, including exceptions that authorize tolling on new infrastructure,
tolling on additional lanes added to existing highways, and tolling in connection with highoccupancy vehicle lanes. See 23 U.S.C. §§ 129, 301.
45.

In 1991, Congress enacted the Intermodal Surface Transportation Efficiency Act of

1991, Pub. L. 102-240 (Dec. 18, 1991) (“ISTEA”), which permits tolling on federal-aid highways
in connection with pilot projects seeking to reduce congestion.
46.

Specifically, ISTEA established the Congestion Pricing Pilot Program, which

directed the Secretary of Transportation to “solicit the participation of State and local governments

20

As delineated by the Act, the CBD encompasses the geographic area of Manhattan south and inclusive of 60th
Street, but not including the FDR Drive, the West Side Highway, the Battery Park Underpass, and any surface roadway
portion of the Hugh L. Carey Tunnel connecting to West Street. Id. § 1704(2).

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and public authorities for one or more congestion pricing pilot projects,” and authorized the
Secretary to “enter into” agreements to “establish, maintain, and monitor congestion pricing
projects.” ISTEA § 1012(b). ISTEA further authorized the Secretary “to allow the use of tolls” by
states, local governments, and public authorities “as part of a pilot program under this section,” id.
47.

In 1998, Congress enacted the Transportation Equity Act for the 21st Century of

1998, which renamed the Congestion Pricing Pilot Program the VPPP and expanded the
Secretary’s authority to enter into agreements authorizing value pricing pilot programs. Pub. L.
105-178 § 1216 (June 9, 1998).
48.

As FHWA describes it, the VPPP is “intended to demonstrate whether and to what

extent roadway congestion may be reduced through application of congestion pricing strategies,
and the magnitude of the impact of such strategies on driver behavior, traffic volumes, transit
ridership, air quality and availability of funds for transportation programs.” 21

FHWA has

recognized that congestion pricing can reduce delays and stress, allow for more deliveries per hour
for businesses, improve transit speeds and reliability of service, and save lives by shortening the
incident response times for ambulances and emergency personnel. 22
49.

According to FHWA, “congestion pricing ... is a way of harnessing the power of

the market to reduce the waste associated with traffic congestion.” 23 Congestion pricing is
effective because it shifts “some rush hour highway travel to other transportation modes or to off-

21

Value Pricing Pilot Program, U.S. FED. HIGHWAY ADMIN.,
https://ops.fhwa.dot.gov/congestionpricing/value_pricing/ (accessed Jan. 19, 2025).

22

Benefits of Congestion Pricing, U.S. FED. HIGHWAY ADMIN.,
https://ops.fhwa.dot.gov/congestionpricing/cp_benefits.htm (accessed Jan. 19, 2025).
23

Congestion Pricing, U.S. FED. HIGHWAY ADMIN., https://ops.fhwa.dot.gov/congestionpricing/index.htm
(accessed Jan. 18, 2025); Federal Tolling Programs, U.S. FED. HIGHWAY ADMIN.,
https://www.fhwa.dot.gov/ipd/tolling_and_pricing/tolling_pricing/vppp.aspx (accessed Jan. 18, 2025) (“Value
pricing – sometimes called congestion pricing – works by charging drivers on congested roadways during peak
periods.”).

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peak periods. By removing even just a small fraction of the vehicles from a congested roadway,
pricing helps the system to flow more efficiently.” Id.
50.

The Secretary of Transportation has delegated the authority to administer the VPPP,

and to enter into agreements under Section 1012(b) of ISTEA, to the FHWA Administrator. See
49 C.F.R. § 1.85(c)(22). FHWA provides tolling authority under the VPPP by entering into tolling
agreements with the relevant state actors. See Value Pricing Pilot Program Participation, Fiscal
Years 2010 and 2011, 75 F.R. 64397, 64403 (Nov. 19, 2010).
51.

Several states have taken advantage of the VPPP.

For example, Texas has

established a program under the VPPP that examined potential congestion pricing incentives and
programs on the IH-30/Tom Landry Highway. Similarly, Florida has established a project
examining the potential for a congestion pricing program on the Florida Turnpike System. After
less than two years, the 95 Express project in Miami and Fort Lauderdale, Florida saw total
ridership on the Bus Rapid Transit “increase[] by 145 percent,” along with “dramatic improvement
in express lane travel speeds along the corridor utilized by transit,” with average speeds during
morning peak time increasing from 20 to 62 miles per hour. Id. FHWA has not rescinded tolling
authority for any of these projects.
52.

Indeed, on information and belief, FHWA has never attempted to unilaterally

rescind tolling authority for any VPPP program or project. FHWA has never publicly announced
a unilateral rescission of tolling authority for a VPPP program or project in the Federal Register
or on its public-facing website. Nor has FHWA ever reported such a rescission in its regular
reports to Congress on the status of the VPPP.
C.

FHWA and the Project Sponsors Conducted a Lengthy Environmental Review
Process
53.

In 2019, the Project Sponsors submitted an Expression of Interest to FHWA seeking

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authorization to implement a variable tolling program aimed at reducing congestion (i.e., a
congestion pricing program) in the Manhattan CBD. FHWA responded that the VPPP “appear[ed]
to be the best potential fit” among the various programs in Federal law allowing for tolling on
Federal-aid highways.
54.

A years-long environmental review process under NEPA ensued. In assessing the

Program, FHWA specifically considered the Program’s purpose “to reduce traffic congestion in the
[CBD] in a manner that will generate revenue for future transportation improvements,” and its
specific objectives of: (1) reducing daily VMT within the CBD by at least five percent; (2) reducing
the number of vehicles entering the CBD daily by at least ten percent; and (3) creating a funding
source for capital improvements and generating sufficient annual net revenues to fund $15 billion
for capital projects. 24
55.

On August 10, 2022, FHWA and the Project Sponsors issued a Draft Environmental

Analysis (“Draft EA”), which was informed by early public outreach and comments as well as
complex and comprehensive technical analyses. The Draft EA examined numerous categories of
potential environmental effects, such as the visual effects of tolling infrastructure, the indirect air
quality and noise effects of changes in traffic patterns, and the effects on transit systems of shifts in
travel mode choice. In accordance with former Executive Order (“EO”) 12,898 (1994), the Draft
EA also studied the potential for disproportionately high and adverse effects on EJ communities,
including the potential effects of traffic diversions on local air quality in the locations throughout
the region most likely to experience diversions.

24

See FHWA et al., Central Business District Tolling Program, Finding of No Significance, Appendix A: Final
Environmental Assessment at ES-6, MTA.INFO (June 14, 2024),
https://new.mta.info/project/CBDTP/environmental-assessment.

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Because the tolling structure was not yet established when the Draft EA was issued,

and in order to allow FHWA and the Project Sponsors to better assess the range of potential impacts
from the Program, the Draft EA analyzed seven tolling scenarios, each with different variables,
using U.S. Environmental Protection Agency-approved traffic and air quality models to predict
changes in regional travel demand and patterns for those scenarios, as compared to predicted
conditions in 2023 and 2045 without the Program. It then studied the scenarios that yielded the
representative worst-case effects for different resource categories (e.g., traffic, noise, etc.) to
consider the full range of potential effects from the Program. The Draft EA also identified measures
to mitigate potential adverse environmental effects and potential effects on EJ populations that were
identified in the analyses.
57.

FHWA and the Project Sponsors provided a 44-day public comment period, during

which anyone could submit comments on the Draft EA. In late August 2022, FHWA and the Project
Sponsors held six virtual public hearings, totaling over 38 hours, to discuss the Draft EA. This was
in addition to early outreach conducted while the Draft EA was in development, and special
outreach to communities and organizations, including multiple meetings to discuss environmental
justice in relation to the Program.
58.

On March 30, 2021, while working with the Project Sponsors, then-Acting FHWA

Administrator Stephanie Pollack commended the Program, saying “The FHWA looks forward to
assisting New York so we can arrive at a prompt and informed NEPA determination on this
important and precedent-setting project.” 25

25

FHWA Greenlights Environmental Assessment for New York City’s Proposed Congestion Pricing Plan, U.S. FED.
HIGHWAY ADMIN. (March 30, 2021), https://highways.dot.gov/newsroom/fhwa-greenlights-environmentalassessment-new-york-citys-proposed-congestion-pricing-plan.

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Between August 2022 and April 2023, FHWA and the Project Sponsors reviewed

and prepared responses to each of the thousands of comments and prepared a Final EA
incorporating these responses and changes informed by the public input.
60.

The Final EA determined that the Program would not have adverse effects on air

quality because it would not cause exceedances of health-based National Ambient Air Quality
Standards. Nevertheless, the Project Sponsors committed to a robust, $155 million mitigation
package over five years to improve air quality and public health in EJ communities with preexisting
pollution and health burdens throughout the region, with particular investments directed to EJ
communities in which the Project could cause any increase in truck traffic.
61.

The Final EA further predicted that the Program would meet each of the objectives

described in Paragraph 54 above based on detailed modeling, using the federally approved Best
Practices Model maintained by the New York Metropolitan Transportation Council.
62.

The Final EA also predicted many beneficial environmental effects of the Program,

including but not limited to:
a. reducing emissions of harmful air pollutants including volatile organic compounds,
nitrogen oxides, carbon monoxide, particulate matter, carbon dioxide equivalent
(i.e., greenhouse gases), and Mobile Source Air Toxics, both within the CBD and
region-wide, through an overall reduction in VMT region-wide;
b. reducing localized emissions for most EJ communities in the CBD and others
outside of the CBD;
c. reducing the number of vehicles entering the CBD;
d. reducing delays at many intersections and highway segments, thereby improving
travel times, reducing vehicle operating costs, and improving safety;

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e. increasing transit ridership;
f. reducing travel times for bus operations and thereby facilitating faster, more
reliable bus trips;
g. reducing parking demand within the CBD;
h. reducing regional energy consumption and greenhouse gas emissions, helping to
meet carbon reduction goals;
i. improving air quality and health in EJ communities through implementation of a
$155 million mitigation program; and
j. creating a dedicated revenue source for investments in public transit, which will
further reduce congestion and improve air quality over time.
63.

In May 2023, FHWA approved the Final EA.

64.

Starting on May 12, FHWA made the Final EA and Draft FONSI available for

public review for a period of 30 days, from May 12 to June 12, 2023.
65.

On June 22, 2023, FHWA issued a FONSI determining that the Program, including

mitigation, would not have a significant adverse impact on the environment and would not have a
disproportionately high and adverse impact on EJ communities or populations.
66.

On June 23, 2023, FHWA’s New York Division Administrator signed the FONSI.

67.

On March 27, 2024, the TBTA Board approved a toll rate schedule through a formal

ratemaking process under New York State law.
68.

In June 2024, the Project Sponsors, in consultation with FHWA, completed a

reevaluation under NEPA (“Reevaluation 1”), which assessed the effects of the adopted toll
structure. On June 14, 2024, FHWA concluded that the adopted toll structure and associated
impacts were analyzed and mitigated appropriately under NEPA, that no additional environmental

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analysis was warranted, and that the conclusions in the Final EA and FONSI remained valid.
Reevaluation 1 also concluded that the adopted toll structure would meet the congestion-reduction
and revenue goals for the Program and achieve similar environmental benefits to those described
in the Final EA.
69.

In November 2024, the Project Sponsors completed a second reevaluation under

NEPA (“Reevaluation 2”) to assess a toll structure approach whereby those toll rates would be
phased in gradually over the first several years of the Program (the “Phase-In Approach”).
70.

Reevaluation 2 confirmed that under the Phase-In Approach, the Program would

still meet its purpose and need, and all of its objectives. Reevaluation 2 also confirmed that the
Project Sponsors would still implement all mitigation commitments, including for EJ communities,
within the same timeframes as contemplated in the Final EA and FONSI.
71.

On November 18, 2024, the TBTA Board formally adopted the Phase-In Approach

to the toll rate schedule under New York State law.
72.

On November 21, 2024, FHWA approved Reevaluation 2, concluding that the

effects of the Program were consistent with those disclosed in the EA, that the Phase-In Approach
of the adopted toll structure and impacts associated with it were analyzed and mitigated
accordingly, and that no additional environmental analysis was warranted.
D.

The VPPP Agreement Is Executed by FHWA and the Project Sponsors
73.

That same day, on November 21, 2024, FHWA and the Project Sponsors signed an

agreement under the VPPP authorizing the Program’s collection of tolls and requiring (among other
things) implementation of the mitigation commitments made in the FONSI.
74.

The VPPP Agreement states in relevant part that “[e]ffective on the date of this

Agreement, the project is approved as a pilot program,” and TBTA is authorized to “operate the
Program as a toll Project in accordance with the provisions of this Agreement and as a value pricing
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project.” VPPP Agmt., cl. 1, 8. FHWA further agreed that “the imposition of tolls under this
Agreement does not render Federal-aid highways within the State of New York generally ineligible
for Federal-aid highway funds where such highways are otherwise eligible under the particular
funding program.” Id. cl. 5.
75.

In return, the Project Sponsors agreed to a number of obligations in the VPPP

Agreement, including: (1) “to adequately maintain” federal-aid highways located in the geographic
area of the Program, id. cl. 6; (2) to submit regular reports on the effects of the Program “on driver
behavior, traffic volume, congestion, transit ridership” and other topics to FHWA, id. cl. 8(b); and
(3) “to comply with all Federal laws and requirements applicable to this project, including the laws
and policies applicable to the Value Pricing Pilot Program,” id. cl. 9. Clause 8 of the VPPP
Agreement further requires that the Project Sponsors “identify benefits the application of tolls has
in reducing climate pollution” and “demonstrate the benefits mitigation measures provide to
underserved communities.” Id. cl. 8.
76.

In addition, the VPPP Agreement requires that FHWA and the Project Sponsors

“will cooperate and work together in the implementation of the Project.” Id. cl. 8(a).
77.

The VPPP Agreement does not include any provision authorizing FHWA to

terminate the agreement. Rather, it contemplates that only TBTA could unilaterally decide to
discontinue the Program, requiring the Project Sponsors to “work with FHWA to return the Project
to its original operating condition if TBTA decides to discontinue tolls on the Project.” Id. cl. 11
(emphasis added). The VPPP Agreement further provides that TBTA and NYCDOT shall “monitor
and report on the project performance” for “a period of at least ten years or to the end of the life of
the Project, whichever is sooner.” Id. cl. (8)(b).

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The VPPP Agreement references FHWA regulations at 23 C.F.R. Part 940 and 950.

These regulations do not grant FHWA authority to unilaterally terminate the VPPP Agreement.
E.

The Successful Implementation of the Program
79.

Prior to implementation of the Program, TBTA budgeted over $500 million towards

efforts to establish the Program, and much of that budget has already been expended. These
expenditures included developing the methodological approach; conducting the assessment and
extensive outreach and developing the final documentation for the environmental review process
under NEPA; design, development, implementation, and testing of the roadway infrastructure and
system; design, development, implementation, and testing of the Back Office System; additional
extensive outreach for the State administrative review process; staff costs, including new staff for
the Program; and consulting costs.
80.

On June 5, 2024, New York Governor Kathy Hochul announced a temporary pause

of the Program. On November 14, 2024, Governor Hochul proposed that the Program move
forward with the Phase-In Approach, featuring a lower initial toll amount to lessen the burden on
drivers.
81.

In late 2024, several groups and individuals, as well as the State of New Jersey,

sought preliminary injunctive relief barring the MTA and TBTA from beginning the Program or
collecting tolls on various federal and state constitutional and statutory grounds. Each of these
claims for injunctive relief was rejected by the courts. See Chan v. U.S. Dep’t of Transp., No. 23
Civ. 10365, 2024 WL 5199945 (S.D.N.Y. Dec. 23, 2024) (Liman, J.) (111-page opinion denying
motions for preliminary injunction in four related cases challenging the program); see also County
of Rockland v. Metro. Transp. Auth., No. Civ. 24-3325 (2d Cir. Jan. 28, 2025), ECF 31 (per
curiam); New Jersey v. Metro. Transp. Auth., No. Civ. 25-1033 (3d Cir. Jan. 4, 2025), ECF 9
(Bibas, J.); Rockland v. Metro. Transp. Auth., No. 24 Civ. 2285 (S.D.N.Y. Jan. 14, 2025)
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(Seibel, J.), ECF 56 (Seibel, J.); New Jersey v. U.S. Dep’t of Transp., No. 23 Civ. 3885 (D.N.J.
Jan. 3, 2025), ECF 212 (Gordon, J.); Rockland v. Metro. Transp. Auth., No. 24 Civ. 2285 (S.D.N.Y.
Dec. 23, 2024) (Seibel, J.), ECF 52; Neuhaus v. Triborough Bridge & Tunnel Auth., No. 24 Civ.
3983 (S.D.N.Y. Dec. 23, 2024 (Seibel, J.), ECF 44. In rejecting these plaintiffs’ requests for a
preliminary injunction to halt the Program, courts recognized that the equities and public interest
favored the Program moving forward, especially in light of the expenditures necessary to
implement the Program and the revenues expected from its operation, see, e.g., Chan, 2024 WL
5199945, at *48-49; that the implementation of the Program reflected a policy choice by New
York’s elected representatives, see id. at *48; and that FHWA conducted a thorough analysis in
deciding to allow the Program to proceed, see id. at *5-10; New Jersey v. U.S. Dep’t of Transp.,
No. 23 Civ. 3885, ECF 212 at 35.
82.

One of the plaintiffs that sued to prevent implementation of the Program is the State

of New Jersey, which sued USDOT and FHWA among others. On December 30, 2024, Judge Leo
Gordon granted USDOT, FHWA, MTA, and TBTA’s motions for summary judgment in
overwhelming part, rejecting New Jersey’s claims that FHWA acted arbitrarily in assessing the
potential adverse environmental impacts on New Jersey resulting from air pollution and
identifying and assessing the potential for disproportionately high and adverse impacts on New
Jersey EJ communities. New Jersey, No. 23 Civ. 3885 (D.N.J. Jan. 3, 2025), ECF 191. New
Jersey also raised concerns about the adequacy of participation afforded to New Jersey entities,
officials, and the public throughout the process, and that FHWA had failed to conduct a
transportation conformity analysis under the Clean Air Act for the Project with regard to New
Jersey’s State Implementation Plan, which claims the Court also rejected. The Court reserved
judgment on two issues that it remanded to FHWA for further explanation: the amount of place-

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based mitigation funding allocated to New Jersey EJ communities and the consideration of
alternatives in light of the adopted Phase-In Approach. Id. The Court did not, as sought by New
Jersey, vacate the FONSI pending the completion of the remand. New Jersey subsequently moved
for reconsideration and for a temporary restraining order, which the Court denied. FHWA filed
its remand results on January 17, 2025, and New Jersey’s response to those results was filed on
February 7, 2025. Id., ECF 226.
83.

On January 5, 2025, the Program went into effect. Eligible vehicles entering the

CBD are being tolled at the rates established in the approved toll rate schedule.
84.

While the Program has only just begun and its full benefits have yet to be realized,

it is clearly working. The Financial Times has estimated that “motorists … will save thousands of
hours per year they currently waste crawling through smoggy tunnels or over clogged bridges.” 26
MTA hourly traffic data “also showed fewer vehicles in affected tunnels during rush hours.” 27 The
New York Times reported that officials estimated there were “tens of thousands fewer vehicles
entering the busiest parts of Manhattan below 60th street” in the first week the Program was in
effect. 28
85.

NBC News reported, based on data provided by MTA Deputy Policy Chief Juliette

Michaelson, that crossing times were 17% faster at the Lincoln Tunnel and 40% faster at the
Holland Tunnel in January 2025, compared to January 2024. 29 Trips on the Williamsburg Bridge

26

Oliver Roeder & Sam Learner, First US congestion pricing scheme brings dramatic drop in NY traffic, FINANCIAL
TIMES (Jan. 16, 2025), https://www.ft.com/content/c229b603-3c6e-4a1c-bede-67df2d10d59f.
27

Id.

28

Ana Ley, Winnie Hu, & Keith Collins, Less Traffic, Faster Buses: Congestion Pricing’s First Week, N.Y. TIMES
(Jan. 13, 2025), https://www.nytimes.com/2025/01/13/nyregion/congestion-pricing-nyc.html.
29

Andrew Siff, MTA Calls Congestion Pricing ‘Transformative” on Commutes, NBC NEW YORK, (Jan. 29, 2025),
https://www.nbcnewyork.com/new-york-city/mta-congestion-pricing-transformative-commute-impact/6126670/.

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and Queensboro Bridge have been 30% faster and riders on express buses are saving about 10
minutes on their commutes. 30
86.

Data collected by the MTA reveals that since the Program began, traffic in the CBD

decreased substantially, with 1.2 million fewer vehicles entering the CBD than projected. Drivers
in the CBD are experiencing travel time improvements in the afternoon peak hours “with
reductions as high as 59%.” 31 Inbound river crossings to the CBD have seen a 10%-48% decrease
in travel times, and several bus routes have seen significant decreases in the time needed to
complete their routes. 32
87.

At the same time, the fact that there are now fewer cars on the road in the CBD has

not stymied economic activity. In fact, data provided by the MTA shows that in January 2025,
35.8 million people visited Business Improvement Districts in the CBD, a 1.5 million increase
compared to last January. As one example of businesses in the CBD continuing to thrive, the gross
revenue of Broadway shows in January 2025 was 25% higher than January last year and attendance
at shows was 17% higher. 33 This should come as no surprise given business leaders’ support for
the Program even before it began. After Governor Hochul announced the Program would move
forward with the Phase-In Approach, the Greater New York Chamber of Commerce posted a
statement by its CEO on X, noting that the Program “will improve the quality of life in Manhattan

30

Id.

31

See New Congestion Relief Zone Data Captures Magnitude of Faster Commutes for Drivers and Bus Riders,
Fewer Vehicles and Surging Express Bus Ridership, METRO. TRANSP. ASS’N (Jan. 29, 2025),
https://www.mta.info/press-release/new-congestion-relief-zone-data-captures-magnitude-of-faster-commutesdrivers-and-bus.
32

Id.

33

Grosses-Broadway in NYC, THE BROADWAY LEAGUE https://www.broadwayleague.com/research/grossesbroadway-nyc/.

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for all who live, work and visit.”34 And the Partnership for New York City’s President & CEO
Kathryn Wylde has stated that, since the onset of Congestion Pricing, New Yorkers are “moving
faster and there’s less traffic,” 35 and that “[i]n every respect, this is a policy that President Trump
and the Republicans should be supporting.” 36
88.

Emergency vehicle speeds have also improved. For many years, increasing traffic

in New York City led to longer and longer emergency vehicle response times. As documented in
a report issued by State Senator Brad Hoylman-Sigal, who represents much of the CBD, and traffic
engineer Sam Schwartz, over the past decade, “E.M.S. response times to life-threatening situations
had increased by 29%; for Fire Department vehicles tending to medical emergencies, the lag was
up by 72 percent.” 37 The preliminary data indicates that emergency vehicles have benefited from
the reduction in congestion and are able to respond more quickly to calls. 38
89.

Reports also indicate that the Program has made the streets safer, with data gathered

by Streetsblog NYC indicating a striking 51% drop in crash-related injuries in the Program’s first
12 days as compared to the same time period in 2024. 39 Thirty-seven people were injured in 90
total reported crashes, down from 76 injuries in 199 crashes in the same 12-day period in 2024.
90.

Also since the onset of Congestion Pricing, subway ridership has increased, while

34

New York’s Chamber (@NYChamber), X, (Nov. 15, 2024, 3:29 PM),
https://x.com/NYChamber/status/1857521387583451602.

35

Dick Brennan, President Trump said to have NYC's congestion pricing, bike lanes in his crosshairs, CBS NEWS
(Feb. 10, 2025), https://www.cbsnews.com/newyork/news/president-trump-nyc-congestion-pricing-bike-lanes/.

36

Ry Rivard & Nick Reisman, New York’s business boosters push Trump to keep Manhattan tolls, POLITICO (Feb.
11, 2025), https://www.politico.com/news/2025/02/11/new-york-trump-congestion-pricing-00203540.
37

Ginia Bellfante, The Life-or-Death Consequences of Killing Congestion Pricing, N.Y. TIMES (Oct. 10, 2024),
https://www.nytimes.com/2024/10/10/nyregion/new-york-fire-department-response-times.html.

38
See METRO. TRANSP. ASS’N, Congestion Relief Zone Update, YOUTUBE (Jan. 29, 2025),
https://www.youtube.com/watch?v=fD5KpBz2yIE.
39

Diana Ionescu, NYC Congestion Pricing May be Saving Lives, PLANETIZEN (Jan. 27, 2025),
https://www.planetizen.com/news/2025/01/133978-nyc-congestion-pricing-may-be-savinglives#:~:text=New%20York%20City's%20new,time%20period%20the%20prior%20year.

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crime in the subway has plummeted. In January 2025, there were 36% fewer crimes reported on
the subway than last January. 40
91.

According to a poll reported by CBS News, the majority of New Yorkers want the

Program to continue. 41 On a 2-to-1 basis, New Yorkers say that the program is working. 42 The
Program’s biggest supporters are the individuals who actually drive into the CBD frequently. And
many of New York’s elected representatives also strongly support the Program. Congressman
Jerry Nadler has stated that “congestion pricing is the best — and only — solution to getting our
transit system back on track” and will allow the “MTA to advance work on the 2nd Avenue
Subway extension, Penn Access, ADA accessibility upgrades, and more. We will end the
congested streets that put public safety and emergency response at risk while meeting our climate
goals to fight the climate crisis.” 43 Manhattan Borough President Mark Levine has also given his
strong support to the Program, stating: “Implementing congestion pricing as soon as possible will
raise the critical funds we need to build elevators and escalators, modernize signals, and give New
Yorkers the transit system we deserve.” 44 Assemblymember Tony Simone from Manhattan
expressed a similar sentiment: “There is not, has never been and never will be, a substitute for the

40

Barbara Russo-Lennon, Subway Crime Plummets as Ridership Jumps Significantly in 2025 in Congestion Pricing
Era, AM NY (Feb 4, 2025), https://www.amny.com/nyc-transit/nyc-subway-crime-plummets-ridership-jumps2025/.
41

Alecia Reid, 6 in 10 Say They Want NYC Congestion Pricing to Continue, New Poll Finds, CBS NEWS (Feb. 5,
2025), https://www.cbsnews.com/amp/newyork/news/new-york-city-congestion-pricing-morning-consult-poll/.
Another poll, run close in time to the Program’s launch, likewise found that a majority of New Yorkers support
congestion pricing. See Barbara Russo-Lennon, The Poll Results Are In: Here’s How New Yorkers Really Feel
About Congestion Pricing, AM NY (Dec. 3, 2024), https://www.amny.com/news/how-new-yorkers-feel-aboutcongestion-pricing/.
42

Id.

43
Gov. Kathy Hochul, What They are Saying: Elected and Community Leaders Support Governor Hochul’s Plan to
Fund Transit and Put Commuters First, GOVERNOR.NY.GOV (Nov. 14, 2024),
https://www.governor.ny.gov/news/what-they-are-saying-elected-and-community-leaders-support-governorhochuls-plan-fund-transit.
44

Id.

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funding promised through congestion pricing. Mass transit is the backbone of our city and state,
which are the economic engine for the nation. This funding is critical to making our system fully
accessible, improving service, delivering the infrastructure to increase residential density to
combat the housing crisis, create thousands of direct and indirect jobs, and induce billions of
dollars of investment.” 45

Although some state and local representatives have opposed the

Program, they are in the minority, and regardless, the TMA was enacted into law by the Legislature
and signed by then-Governor Cuomo.
92.

Following its implementation, many New Yorkers have spoken out about the

benefits of the Program. Illena Robbins, who grew up in Manhattan and now lives in Queens, said
in an interview with the New York Times that crossing the street to get lunch “would stress me
out,” but now that the Program is in effect, she is “able to cross safely, and cars weren’t honking.
It was like a whole other world.” 46 Asad Dandia, who owns and operates a walking tour company,
agreed “it was much easier to cross the street … definitely quieter [and] definitely calmer.” 47
93.

On social media, New Yorkers have also been praising the Program. Ramit Sethi

posted in all caps on January 9th that his trip to Newark Liberty International Airport was “the
fastest trip I’ve ever taken to the airport from NYC!!! Thank you Congestion Pricing!!!” 48 Paul
Rieckhoff posted on X, “‘Its been a month now, and its completely different. I love it. I don’t mind
driving here anymore. It’s great.’ – My uber driver today on congestion pricing in Manhattan. I
agree. The change to traffic in the city is significant. Especially on the weekends. And especially

45

Id.

46

Dodai Stewart, New Yorkers Have Little Data but Big Feelings about Congestion Pricing, N.Y. TIMES, (Jan. 11,
2025), https://www.nytimes.com/2025/01/11/nyregion/new-york-congestion-pricing-reaction.html.

47

Id.

48

Id.

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for those of us that live here.” 49 Sam Biederman wrote, “Congestion pricing is amazing. Was just
in Lower Manhattan. Not car-choked, foot, bike and car traffic flowing very freely. Good idea,
absolutely worth $9.” 50
94.

There is evidence that even former skeptics of the Program are coming to see its

benefits. Ali Lyles, who first posted a video on TikTok comparing being charged the toll to “being
robbed without a gun,” later posted a video acknowledging that he had saved half an hour on his
commute and said, “there wasn’t no traffic, bruh … I might actually like congestion pricing.”51
This is consistent with the experiences of other cities that have implemented congestion pricing
programs, such as London and Stockholm, where support for congestion pricing increased
significantly following implementation, as the benefits became apparent. 52 As the old adage goes,
time is money—in this case, collectively tens of billions of dollars that will be saved as a result of
the Program, far more than the collective cost to drivers.
F.

Then-Candidate Trump’s Repeated Threats to “Kill” Congestion Pricing and
“Slash” Environmental Regulations
95.

Despite the strong support for the Program in New York, Donald Trump, as a

candidate for national office, repeatedly voiced his political opposition to the Program and stated
that he would “terminate” and “kill” the Program once in office.

49

Paul Rieckhoff (@PaulRieckhoff), X, (Feb. 2, 2025, 4:18 PM),
https://x.com/PaulRieckhoff/status/1886162240250028417.
50

Sam Biederman (@Biedersam), X, (Jan. 5, 2025, 3:32 PM),
https://x.com/Biedersam/status/1876001600835354735.
51

Id.

52
Abdallah Fayyad, NYC’s Congestion Pricing is Unpopular – For now, VOX (Jan. 10, 2025),
https://www.vox.com/policy/394514/congestion-pricing-popular-support-new-york-stockholm-london

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On May 7, 2024, in anticipation of the June 2024 expected implementation, he

wrote on Truth Social:

.
97.

On May 24, 2024, he wrote the following on Truth Social:

98.

Following the election, President Trump has continued to express his personal

opposition to the Program, saying in an interview with the New York Post on November 14, 2024
that he “strongly disagree[d] with the decision on the congestion tax.” 53
99.

On January 11, then President-elect Trump met with Representatives Nicole

Malliotakis and Mike Lawler from New York. 54

Following the meeting, Representative

53
Steven Nelson, Trump slams Hochul move to revive NYC congestion tax: ‘It will hurt workers, families, and
businesses’, N.Y. POST (Nov. 14, 2024), https://nypost.com/2024/11/14/us-news/trump-slams-hochul-move-torevive-nyc-congestion-tax/.
54

Rep. Lawler represents a district in Rockland County, which filed suit to block the program on March 26, 2024,
alleging that the Program violates the Equal Protection clauses of the United States and New York constitutions, is an

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Malliotakis posted the following on X presumably from President Trump’s Mar-a-Lago Club:

100.

The next day, she posted on X that, during the meeting, Trump “told us that he …

wants to provide SALT relief and kill congestion pricing.”
101.

As a candidate, President Trump also made it clear that he planned to “slash”

existing environmental regulations, including those promulgated pursuant to NEPA.
102.

In his last term, President Trump described NEPA as a “job-killing regulation” and

implemented regulations as part of a “campaign to slash” NEPA’s effectiveness. 55
103.

As President-elect, indicating his general disregard for the nation’s environmental

“unauthorized tax,” and constitutes an excessive fine in violation of the Eighth Amendment. Judge Seibel denied
Rockland’s request for a preliminary injunction on December 23, 2024, ruling that Rockland had “failed to show a
likelihood of success on the merits as to any of their claims.” Rockland v. Metro. Transp. Auth., No. 24 Civ. 2285
(S.D.N.Y. Dec. 23, 2024) (Seibel, J.), ECF 52.
55

Remarks by President Trump on Proposed National Environmental Policy Act Regulations, TRUMP WHITE HOUSE
ARCHIVES, (Jan. 9, 2020), https://trumpwhitehouse.archives.gov/briefings-statements/remarks-president-trumpproposed-national-environmental-policy-act-regulations/.

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regulations, Trump posted on Truth Social:

G.

The Administration Moves to ‘Terminate’ Congestion Pricing
104.

On the day of President Trump’s Inauguration, January 20, 2025, New Jersey

Governor Phil Murphy made a personal appeal to him to end the Program. Governor Murphy noted
that President Trump had previously described congestion pricing as a “disaster” and had vowed to
“TERMINATE” it on his “FIRST WEEK BACK in office!!!” 56
105.

On January 29, 2025, and in apparent contrast to President Trump’s desire to end

the Program, Secretary Duffy issued an order titled “Ensuring Reliance Upon Sound Economic
Analysis in Department of Transportation Policies, Programs, and Activities.” 57 Section 5(f)(i) of
the order states that USDOT will “prioritize” projects “that utilize user-pay models.” Congestion
pricing is, by definition, a “user-pay” model, as it requires payment for use of the roadways in the
CBD. Similarly, Section 5(f)(iii) of the order requires projects to “mitigate the unique impacts of
DOT programs,” such as “the accessibility of transportation to families with young children.” The
Program meets these goals by generating revenues to install elevators at subway stations, improve

56

Carl Campanile, NJ Gov. Phil Murphy Makes Personal Appeal to Trump to Kill Congestion Pricing, N.Y. POST
(Jan. 20, 2025), https://nypost.com/2025/01/20/us-news/nj-gov-phil-murphy-makes-personal-appeal-to-trump-tokill-congestion-pricing/.
57

Signed DOT Order re: Ensuring Reliance Upon Sound Economic Analysis in Department of Transportation
Policies Programs and Activities, U.S. DEP’T. TRANSP. (Jan. 29, 2025), https://www.transportation.gov/briefingroom/signed-dot-order-re-ensuring-reliance-upon-sound-economic-analysis-department

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pedestrian and cyclist safety, and reduce gridlock to improve travel time reliability, thereby
increasing transportation options for families with young children, while also reducing vehicular
emissions and financing significant environmental mitigation measures to enhance their health.
106.

On January 30, 2025, the New York Times reported that officials at USDOT had

been discussing “whether to withdraw a key federal authorization that the tolling plan received
from the Biden administration last year.” 58 Though the Trump Administration has no authority to
unilaterally stop the Program, given President Trump’s statements during the presidential
campaign and after the election, as well as other apparently lawless actions taken in the first two
weeks of the second Trump Administration, 59 it is unsurprising that the Administration has pressed
forward to try to find a way to “terminate” the Program—notwithstanding FHWA’s prior approval,
and notwithstanding even USDOT’s more recent express prioritization of user-pay programs like
this one.
107.

On February 19, 2025, DOT followed through with the President’s promise to

attempt to “terminate” congestion pricing by purporting to terminate approval for the VPPP. In the
announcement of its action, DOT cited “two reasons” for termination: (1) that “the scope of the
CBDTP is unprecedented and provides no toll-free option for many drivers” and (2) that “the toll
rate was set primarily to raise revenue for transit, rather than at an amount needed to reduce

58

Benjamin Oreskes, Ana Ley, et al., Trump Administration Considers Halting Congestion Pricing, N.Y. TIMES
(Jan. 30, 2025), https://www.nytimes.com/2025/01/30/nyregion/nyc-trump-congestion-pricing.html.
59
See, e.g., Washington v. Trump, Case No. 2:25-cv-00127-JCC (W.D. Wash. Jan. 23, 2025) (ECF 43) (granting
temporary restraining order against Trump Administration’s attempt to redefine the Fourteenth Amendment’s
citizenship guarantee); Casa Inc. v. Trump, Case No. 8:25-cv-00201-DLB (D. Md. Feb. 5, 2025) (ECF 65) (granting
preliminary injunction against Trump Administration’s attempt to redefine the Fourteenth Amendment’s citizenship
guarantee); New York v. Trump, Case No. 1:25-cv-00039 (D.R.I. Jan. 29, 2025) (Minute Entry) (granting temporary
restraining order against Trump Administration’s attempts to impose broad “freeze” of federal funding); Nat’l
Council of Nonprofits v. Off. Mgmt. Budget, Case No. 1:25-00239-LLA (D.D.C. Feb. 3, 2025) (ECF 30) (same);
Massachusetts v. Nat’l Insts. Health, Case No. 1:25-cv-10338-AK (D. Mass. Feb. 10, 2025) (ECF 25) (granting
temporary restraining order against Trump Administration’s attempt to broadly cut research funding from the
National Institutes of Health).

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congestion,” and so “runs contrary to the purpose of the VPPP, which is to impose tolls for
congestion reduction – not transit revenue generation.”
108.

This is the definition of arbitrary and capricious—not to mention hypocrisy. DOT

did not cite any basis in the statute authorizing it to reverse the approval it had provided just three
months earlier, following a four-year intensive review process, let alone explain how the fact that
the Program obviously imposes a toll (as DOT admits is authorized under the VPPP) or is aimed at
congestion reduction by way of reducing vehicular congestion and promoting mass
transportation—facts DOT has known all along—render the Program impermissible.
H.

The MTA, TBTA, and the Region’s Economy and Public Transit System Will be
Irreparably Harmed if Plaintiffs are Forced to End the Program
109.

TBTA budgeted over $500 million to establish the Program, and much of the

budget was expended in advance of implementation. These expenditures included developing the
methodological approach; conducting the assessment and extensive outreach and developing the
final documentation for the environmental review process under NEPA; design, development,
implementation and testing of the roadway infrastructure and system; design, development,
implementation and testing of the Back Office System; additional extensive outreach for the State
administrative review process; staff costs, including new staff for the Program; and consulting
costs.
110.

If TBTA is unlawfully prevented from proceeding with the Program, it will incur

roughly $12 million in additional expenditures per month, most of which would be related to a
combination of the operations and maintenance of the roadside tolling system, the operations of
the back-office system and Customer Contact Center, and consultant costs. This figure does not
include the costs related to additional staff that were brought on specifically for the Program nor
other costs, such as those related to outreach and advertising and assessments to be undertaken for

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the Program. These costs cannot be deferred pending litigation over the legality of the Challenged
Action.
111.

Any pause in the Program would also cause TBTA to lose estimated monthly

revenues in the first phase of the Program of over $40 million, based on projected net annual
revenues of roughly $500 million during that period.
112.

Furthermore, a pause in the Program would result in increased traffic and

congestion, which will lengthen travel times for bus operations and reduce transit ridership.
113.

Stopping the Program would also prevent MTA, the end recipient of Program

revenues, from proceeding with vitally important work under the Capital Program, which is
intended to ensure that improvements put in place will be sustainable for years to come. The
Capital Program identifies $52 billion of critical investments in the region’s subways, buses, and
commuter railroads, nearly one-third of which would be supported by the Program.
114.

New York’s economy, and therefore the nation’s economy, depends on keeping

New York moving. In practical terms, that means funding the Capital Program, which is much
needed and cannot be further delayed. As Janno Lieber, the MTA CEO, explained: “Concrete and
steel, you poke holes in it, subject it to water and chemicals and salt for 100 years, it’s going to
give out.” The reason the State’s elected representatives chose Congestion Pricing was, again,
because it is simply the best solution to promote transportation in the nation (and North America’s)
largest transportation system.
115.

Critical parts of the Capital Program would be delayed if Program tolling revenues

are halted. The Capital Program includes: (1) adding accessibility improvements (including
elevators) to numerous subway stations consistent with the Americans with Disabilities Act, by
making at least 70 more subway systems accessible through building new elevators at 70 stations

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in all of the boroughs and replacing up to 65 escalators and 78 elevators, and finally bring the
transportation system to greater than 50% accessibility; (2) improving outdated signaling, by
doubling the track lines with modernized signals; (3) purchasing over 1,900 new rail cars, which
are six times more reliable than older ones, and replacing 2,400 buses; (4) replacing approximately
60 miles of track; and (5) renewing stations and addressing critical repair projects at 175 stations.
116.

The Capital Program will also provide much-needed repairs to Grand Central

Terminal, a more than 100-year-old structure that is used by more than 700 trains a day. And
coupled with funding from the 2015-2019 program, the Capital Program further provides funding
for three new fully accessible stations on the Second Avenue Subway that would allow connection
to the Metro-North lines, strengthening connections for Harlem and East Harlem residents.
117.

New Yorkers, through the Capital Program, will also receive better access to Penn

Station through a new route with four new stations on the Metro-North New Haven Line that will
carry up to 50,000 Metro-North customers directly to Penn Station every day.
118.

TBTA has incurred debt that it will rely on Program revenues to repay. This

includes $378.8 million in short-term notes that were previously issued and currently outstanding
to fund infrastructure costs and $500 million in short-term notes to fund a portion of the $15 billion
of capital projects in the MTA’s Capital Program.
119.

Finally, ending the Program means the unabated continuation of the severe

congestion in the CBD, with its concomitant economic, environmental, and public health and
safety costs to businesses, residents, commuters, workers, and visitors in this area, without any
evaluation of these and other environmental impacts, opportunity for public participation, or
consideration of alternatives required by NEPA.

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Plaintiffs will continue to operate the Program as required by New York law until

and unless Plaintiffs are directed to stop by a court order.
121.

Based on the foregoing, there is an actual controversy within the jurisdiction of this

Court under 28 U.S.C. §§ 2201 and 2202.
CAUSES OF ACTION
COUNT I
Termination of the VPPP Agreement
Violation of the Administrative Procedure Act
(Substantively Arbitrary & Capricious – Contrary to Law)
(5 U.S.C. § 701 et seq.)
122.

Plaintiffs reallege and incorporate by reference all preceding paragraphs as if set

forth fully herein.
123.

The acts of all executive branch officers “must be justified by some law, and in case

an official violates the law to the injury of an individual the courts generally have jurisdiction to
grant relief.” Am. Sch. of Magnetic Healing v. McAnnulty, 187 U.S. 94, 108 (1902).
124.

Further, under the APA, a court must “hold unlawful and set aside agency action,

findings, and conclusions found to be … contrary to constitutional right, power, privilege, or
immunity,” or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory
right.” 5 U.S.C. §§ 706(2)(B)-(C).
125.

Defendants are not authorized by any law—statutory or constitutional—to

unilaterally terminate the VPPP Agreement contrary to its terms. The VPPP Agreement is a valid
agreement, currently in effect, supported by consideration, and subject to considerable reliance
interests. Neither ISTEA nor the VPPP Agreement authorizes FHWA to unilaterally rescind the
VPPP Agreement or to rescind FHWA’s approval of the Program.

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ISTEA does not include any provision authorizing FHWA to terminate the VPPP

Agreement. ISTEA authorizes the Secretary to “enter into” agreements “to establish, maintain, and
monitor” value pricing pilot programs. ISTEA § 1012(b). ISTEA further directs that the Secretary
shall “monitor the effect of such programs for a period of at least 10 years.”
127.

The VPPP Agreement does not include any provision authorizing FHWA to

terminate the agreement. Rather, the VPPP Agreement contemplates that only TBTA could
unilaterally decide to discontinue the Program, requiring the Project Sponsors to “work with FHWA
to return the Project to its original operating condition if TBTA decides to discontinue tolls on the
Project.” VPPP Agmt. cl. 11. The VPPP Agreement further provides that TBTA and NYCDOT
shall “monitor and report on the project performance” for “a period of at least ten years or to the
end of the life of the Project, whichever is sooner.” Id. cl. (8)(b).
128.

The VPPP Agreement references FHWA regulations at 23 C.F.R. Part 940 and 950.

These regulations do not purport to grant FHWA authority to unilaterally terminate the VPPP
Agreement, and the FHWA has acted ultra vires.
129.

In addition, an executive officer acts ultra vires where it “deprives a contractor of

a right expressly or impliedly granted by another statute.” Chamber of Com. of U.S. v. Reich, 74
F.3d 1322, 1328 (D.C. Cir. 1996).
130.

Defendants have deprived Plaintiffs of rights expressly and impliedly granted by

ISTEA § 1012(b), which permits tolling of federally funded highways following approval of a
VPPP Project.
131.

Defendants have no authority to terminate the VPPP Agreement or rescind TBTA’s

authority to operate the Program. Therefore, Defendants have acted contrary to law and the
Challenged Action is arbitrary and capricious and must be declared unlawful, vacated, and set aside.

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COUNT II
Ultra Vires
Termination of the VPPP Agreement
132.

Plaintiffs reallege and incorporate by reference all preceding paragraphs as if set

forth fully herein.
133.

The acts of all executive branch officers “must be justified by some law, and in case

an official violates the law to the injury of an individual the courts generally have jurisdiction to
grant relief.” Am. Sch. of Magnetic Healing v. McAnnulty, 187 U.S. 94, 108 (1902).
134.

ISTEA does not authorize Defendants to unilaterally rescind a cooperative

agreement entered into to authorize tolling under the VPPP, nor does the VPPP Agreement itself
empower Defendants to terminate the agreement or rescind FHWA’s approval of the Program.
135.

The Challenged Action is ultra vires because it purports to unilaterally terminate

the VPPP Agreement and rescind TBTA’s authority to implement tolls under the VPPP for the
Program without statutory authority and contrary to the applicable agency regulations and the terms
of the VPPP Agreement.
136.

The Challenged Action is ultra vires because rescission of the VPPP Agreement is

not authorized under any provision of law.
137.

The Challenged Action is ultra vires because the VPPP Agreement is a valid and

binding agreement and the VPPP Agreement does not permit unilateral rescission by FHWA or any
other governmental actor.
138.

In addition, an executive officer also acts ultra vires where it “deprives a contractor

of a right expressly or impliedly granted by another statute.” Chamber of Com. of U.S. v. Reich, 74
F.3d 1322, 1328 (D.C. Cir. 1996).
139.

Defendants have deprived Plaintiffs of rights expressly and impliedly granted by

ISTEA §1012(b), and thus acted ultra vires.
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COUNT III
Termination of the VPPP Agreement
Violation of the Administrative Procedure Act
(Procedurally Arbitrary & Capricious – Contrary to Regulations)
(5 U.S.C. § 701 et seq.)
140.

Plaintiffs reallege and incorporate by reference all preceding paragraphs as if set

forth fully herein.
141.

The VPPP Agreement is a cooperative agreement because “the principal purpose

of the relationship is to transfer a thing of value” (authority to collect toll revenues) and “substantial
[federal] involvement is expected.” 31 U.S.C. § 6305; 2 C.F.R. 200.1; see also 23 U.S.C. § 149
note (Value Pricing Pilot Program), cl. 1 (authorizing Secretary to enter into “cooperative
agreements” under the VPPP). FHWA has determined that agreements authorizing projects that
require tolling authority under the VPPP are cooperative agreements, even where such agreements
do not include a federal funding component. See Congestion Pricing, Value Pricing Pilot Program,
FHWA (May 17, 2024), https://ops.fhwa.dot.gov/congestionpricing/value_pricing (“The Moving
Ahead for Progress in the 21st Century (MAP-21) Act did not authorize additional funds after
FY2012 for the discretionary grant component of the Value Pricing Pilot Program (VPPP).
However, FHWA’s ability to enter into cooperative agreements for projects that require tolling
authority under this program for their implementation will continue.”) (last accessed Feb. 12, 2025).
142.

FHWA has adopted the Office of Management and Budget’s agency-wide Uniform

Administrative Requirements, Cost Principles,

and

Audit

Requirements

for

Federal

Awards (“Uniform Guidance”), 2 C.F.R. Part 200. See id. § 1201.1.
143.

The Uniform Guidance sets out specific conditions under which an award,

including a cooperative agreement, see id. § 200.1, may be terminated:

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a. by the agency if the recipient “fails to comply with the terms and conditions”
of the award;
b. by the agency with the “consent” of the recipient;
c. by the recipient; and
d. by the agency “pursuant to the terms and conditions” of the award.
Id. § 200.340(a).
144.

None of the conditions in which termination is permitted under the Uniform

Guidance are present here. First, Defendant Duffy did not and cannot claim that the recipients have
failed to comply with the terms of the conditions of the VPPP Agreement, and the recipients have
in fact complied with the terms of the VPPP Agreement; second, the recipients did not and do not
consent to termination of the VPPP Agreement; third, the recipients have not requested termination
of the VPPP Agreement; and, fourth, the VPPP Agreement does not contain any provisions that
would permit Defendants to terminate the agreement unilaterally. Additionally, to the extent the
VPPP Agreement contemplates termination by any party, it reflects that TBTA would be the one
party which could “discontinue tolls on the Project.” VPPP Agmt., cl. 11.
145.

The Uniform Guidance describes specific steps that an agency must take before it

may terminate an award for noncompliance, including providing written notice and an opportunity
to be heard. 2 C.F.R. § 200.341(a), 342; see also U.S. Dep’t of Transp., Guide to Financial
Assistance at 72-77 (Oct. 2019) (further describing requirements for pre-termination notice and
appeals). FHWA did not provide the recipients with notice of its intent to terminate the VPPP
Agreement and also has not provided notice to the recipients of any alleged noncompliance with
the VPPP Agreement. The recipients have not been provided with an opportunity to be heard or to
appeal the termination.

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The Administration’s action in terminating tolling authority under the VPPP

Agreement contrary to the terms of the VPPP Agreement and to the applicable regulations
governing the administration of the VPPP Agreement was arbitrary, capricious, and not in
accordance with law, and without observance of procedure required by law, within the meaning of
the APA, 5 U.S.C. § 706(2), and should be held unlawful and set aside by the Court.
COUNT IV
Termination of the VPPP Agreement
Violation of the Due Process Clause of the Fifth Amendment
(U.S. Const. amend. V, cl. 3)
147.

Plaintiffs reallege and incorporate by reference all preceding paragraphs as if set

forth fully herein.
148.

The Due Process Clause of the Fifth Amendment provides that “No person shall …

be deprived of life, liberty, or property, without due process of law.” U.S. CONST. amend. V, cl. 3.
149.

Upon the execution of the VPPP Agreement, Plaintiffs had a property interest in

the VPPP Agreement and in the authority granted by the VPPP Agreement to implement tolls within
the CBD for the Program.
150.

An agency’s withdrawal of consent for public or private entities to engage in a

contract implicates a property interest protected by the Due Process Clause. See, e.g., Toxco Inc.
v. Chu, 724 F. Supp. 2d 16, 27-28 (D.D.C. 2010). Defendants’ unilateral termination of the VPPP
Agreement deprives Plaintiffs of a property interest contrary to law.
151.

Further, the Plaintiffs’ property interest in the Program and its infrastructure “attain

... constitutional status by virtue of the fact that they have been initially recognized and protected
by state law,” here, the TMA. Ralls Corp. v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 315
(D.C. Cir. 2014) (quoting Paul v. Davis, 424 U.S. 693, 710, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976)).

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Unilateral termination of the VPPP Agreement does not afford Plaintiffs the process

they are entitled to under the VPPP Agreement, the relevant regulations, and the United States
Constitution. Prior to terminating the VPPP Agreement, Defendants did not provide Plaintiffs with
notice and failed to give Plaintiffs an opportunity to respond or be heard.
153.

In addition, the VPPP Agreement constitutes an agreement which cannot be

invalidated without due process in accordance with its terms.
154.

Defendants’ actions violate the Due Process Clause of Fifth Amendment by

depriving Plaintiffs without due process of their property interest in the VPPP Agreement and the
authority granted by the VPPP Agreement to implement tolls within the CBD for the Program.
COUNT V
Termination of the VPPP Agreement
Violation of the Administrative Procedure Act
(Substantively Arbitrary & Capricious – Insufficient Explanation)
(5 U.S.C. § 701 et seq.)
155.

Plaintiffs reallege and incorporate by reference all preceding paragraphs as if set

forth fully herein.
156.

At the time of Defendants’ purported termination of the VPPP Agreement, FHWA

had issued the Final EA, FONSI, Reevaluation 1, and Reevaluation 2, and had executed the VPPP
Agreement authorizing tolling under the Program.
157.

FHWA’s execution of the VPPP Agreement constituted final agency action with

respect to FHWA’s decision to authorize tolling under the Program.
158.

Under the APA, an agency “changing its course” by rescinding a prior rule or order

“is obligated to supply a reasoned analysis for the change beyond that which may be required when
an agency does not act in the first instance.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983).

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Defendants did not adequately explain their reasoning for purportedly rescinding

the VPPP Agreement, in violation of the APA. See Perez v. Mortgage Bankers Ass’n, 575 U.S. 92,
106 (2015) (“[T]he APA requires an agency to provide more substantial justification when its new
policy rests upon factual findings that contradict those which underlay its prior policy; or when its
prior policy has engendered serious reliance interests that must be taken into account.”)
160.

Defendants did not adequately examine or rely on relevant data in deciding to

terminate the VPPP Agreement, in violation of the APA. Motor Vehicle Mfrs. Ass’n of U.S., 463
U.S. at 30 (an agency “must examine the relevant data and articulate a satisfactory explanation for
its action.”)
161.

Defendants failed to consider the impact on the economy, the environment, and

congestion in the CBD in acting to terminate the tolling authority for the Program. The Program
will provide substantial benefits to the CBD and the region in terms of reduced traffic and
congestion, improved air quality, and concomitant environmental, public health, and economic
benefits resulting from shifting traffic patterns that occurred following the implementation of the
Program.
162.

Defendants were obligated to consider the costs of ending the VPPP Agreement for

transit riders, people residing, working, learning and recreating in and around the CBD, and TBTA
and MTA. Defendants transparently failed to do so, having made their decision without seeking
input from Plaintiffs and without inquiring about the costs from congestion, pollution, and cessation
of a program the TBTA has invested hundreds of millions to bring online.
163.

Defendants also failed to adequately consider whether “there was ‘legitimate

reliance’ on the” prior administration’s method of using the VPPP Agreement as an indispensable
tool in efforts to address congestion, reduce pollution, and raise revenues to support public transit.

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Dep’t of Homeland Sec. v. Regents of the Univ. of Ca., 140 S. Ct. 1891, 1913 (2020) (quoting Smiley
v. Citibank (South Dakota), N.A., 517 U.S. 735, 742 (1996)). The MTA, TBTA, and now holders
of debt issued in reliance on Program revenues, have all relied on the executed VPPP Agreement.
The Challenged Action was arbitrary and capricious; where, as here, “an agency changes course ...
it must ‘be cognizant that longstanding policies may have engendered serious reliance interests that
must be taken into account.”’ Id. (quoting Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117,
2126 (2016)).
164.

In addition, Defendants failed to consider alternative approaches that would allow

at least some of the Program to continue, or another means to raise revenues, and that would have
accordingly imposed less-significant burdens on Plaintiffs. The Supreme Court has held an agency
action is arbitrary and capricious because it was issued “‘without any consideration whatsoever’ of
a [more limited] policy.” Regents of the Univ. of Cal., 140 S. Ct. at 1912 (quoting State Farm, 463
U.S. at 51).
165.

By omitting any analysis of continuing at least some elements of the Program, the

Challenged Action “failed to consider important aspects of the problem” before it. Id. at 1910.
166.

The Challenged Action, likewise, fails to meaningfully consider more limited

policies than complete termination of VPPP Agreement.
167.

Instead, Defendants acted entirely based on political considerations. Defendants

had made no indication that it was reconsidering the Program until President Trump took office last
month. But President Trump has long indicated his desire to “kill” or terminate the Program, both
in conversations with Republican lawmakers and in social media posts. Defendants, bending under
this political pressure, did not undertake any analysis or provide any explanation before revoking
its prior decision to enter into the VPPP Agreement and approve the Program.

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Defendants’ action purporting to revoke tolling authority under the VPPP

Agreement without providing sufficient explanation of its decision was therefore arbitrary,
capricious, and not in accordance with law, and without observance of procedure required by law,
within the meaning of the APA, 5 U.S.C. § 706(2), and should be held unlawful and set aside by
the Court.
COUNT VI
Termination of the VPPP Agreement
Violation of the National Environmental Policy Act and the Administrative Procedure Act
(42 U.S.C. § 4321 et seq.; 5 U.S.C. §§ 701–706)
169.

Plaintiffs reallege and incorporate by reference all preceding paragraphs as if set

forth fully herein.
170.

At the time of Defendants’ purported termination of the VPPP Agreement,

Defendants had issued the Final EA, FONSI, Reevaluation 1, and Reevaluation 2, and had executed
the VPPP Agreement authorizing tolling under the Program.
171.

At the time of Defendants’ purported termination of the VPPP Agreement, the

NEPA process for the Program was complete, and there was no “major federal action” remaining
to occur with respect to the Program.
172.

Defendants’ purported termination of the VPPP Agreement constitutes a new final

agency action under NEPA and the APA and a major federal action within the meaning of NEPA,
42 U.S.C. §§ 4332(C), 4336e(10).
173.

NEPA requires Defendants to prepare an EIS for any “major federal action[]

significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C).
174.

To determine whether a “major federal action” will have a significant effect on “the

quality of the human environment,” Defendants may prepare an EA. 42 U.S.C. § 4336(b)(2); 40
C.F.R. § 1501.5; 23 C.F.R. § 771.119.

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If an agency determines that the proposed action will not have significant effects,

accounting for mitigation, it can issue a FONSI. 42 U.S.C. § 4336(b)(2); 40 C.F.R. § 1501.6; 23
C.F.R. § 771.121. If the EA reveals that there may be significant effects, an EIS is required.
176.

Either level of review requires public participation opportunities and consideration

of alternatives to the proposed action. E.g., 42 U.S.C. § 4332(C)(iii), (F) and (H); 40 C.F.R.
§§ 1501.5(c), (f), 1502.14s; 23 C.F.R. 771.119(b).
177.

Defendants failed to undertake any NEPA review of their decision to terminate the

VPPP Agreement, much less an adequate environmental review that considered all environmental
impacts of the proposed action.
178.

Defendants did not undertake any public participation with respect to their decision

to terminate the VPPP Agreement, in contrast to the substantial public participation opportunities
afforded prior to the adoption of the Final EA (including 44-day public comment period) and
FONSI (including a 30-day public availability period).
179.

Under NEPA and its implementing regulations, Defendants are required to take a

hard look at the reasonably foreseeable social, economic, and environmental impacts of a proposed
action and its alternatives. 42 U.S.C. § 4336; 23 C.F.R. § 771.119(b).
180.

Defendants failed to consider the full extent of the reasonably foreseeable impacts

of seeking to terminate the Program, which will provide substantial benefits to the CBD and the
region in terms of reduced traffic and congestion, improved air quality, and concomitant
environmental, public health, and economic benefits resulting from shifting traffic patterns that
occurred following the implementation of the Program.
181.

Defendants failed to consider alternatives to terminating the program. 42 U.S.C.

§ 4332(C)(iii), (F) and (H); 40 C.F.R. §§ 1501.5(c), 1502.14s; 23 C.F.R. § 771.119(b).

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Defendants failed to consider mitigation measures that “avoid, minimize, or

compensate for adverse effects caused by a proposed action or alternatives,” 40 C.F.R. § 1508.1(y),
or to identify measures which might mitigate adverse environmental impacts, and incorporate
measures necessary to mitigate adverse impacts into its action terminating the VPPP Agreement.
23 C.F.R. §§ 771.105(e), 771.119(b).
183.

Defendants’ action in revoking tolling authority under the VPPP Agreement

without conducting the required NEPA review was therefore arbitrary, capricious, and not in
accordance with law, and without observance of procedure required by law, within the meaning of
the APA, 5 U.S.C. § 706(2), and should be held unlawful and set aside by the Court.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff respectfully requests that the Court:
i.

Declare that Defendants’ purported termination of the VPPP Agreement
was undertaken in violation of the terms of the VPPP Agreement and is in
excess of statutory authority and ultra vires; in violation of Plaintiffs’ Fifth
Amendment right to Due Process; without observance of procedure
required by law in violation of the APA; arbitrary and capricious in
violation of the APA; and violates NEPA;

ii.

Vacate the Challenged Action and Defendants’ decision to purportedly
terminate the VPPP Agreement;

iii.

Grant any further necessary and proper relief pursuant to 28 U.S.C. § 2202;

iv.

Award Plaintiffs their costs for the action, including reasonable attorneys’
fees; and

v.

Grant all such other and further relief as it deems just and proper.

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Dated: February 19, 2025
New York, New York

Filed 02/19/25

Page 51 of 51

Respectfully submitted,

Roberta A. Kaplan
D. Brandon Trice
Maximilian T. Crema
KAPLAN MARTIN LLP
1133 Avenue of the Americas | Suite 1500
New York, NY 10036
Tel.: [phone]
[e-mail]
[e-mail]
[e-mail]
Mark A. Chertok
Elizabeth Knauer
John F. Nelson
SIVE, PAGET & RIESEL, P.C.
560 Lexington Avenue, 15th Floor
New York, NY 10022
Tel.: [phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiffs Metropolitan
Transportation Authority and Triborough
Bridge and Tunnel Authority

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