| Defenders of Congestion
Pricing Say Plaintiffs Too Late
and Environmental Justice Is Not
Law
by
Matthew Russell Lee, Patreon Book
Substack
SDNY
COURTHOUSE,
May 17 – Lawsuits
against New York City's
congestion pricing plan were
heard on May 17 by U.S.
District Court for the
Southern District of New York
Judge Lewis J. Liman. Inner
City Press was there and live
tweeted. Thread:
Judge Liman: what
assurance are there? If a
state decided we want to sell
off land to generate money for
mining, you're not required to
consider the alternate of
selling half or a
quarter? Federal Highway
Administration lawyer: Right.
Often only the project itself
is considered.
Judge
Liman: We know that from time
to time the people who
administer the highway
increase the toll, or change
the lanes - changes can happen
that would impact traffic
flows. Is that
re-evaluated? Federal
Highway Administration lawyer:
It's flexible... Battery Park
City was assessed - four of
the 102 intersections, we find
no adverse impact on West
Street. Plaintiffs focus on
Tolling Scenario A, that it
would push more traffic
diversions to the Holland
Tunnel
Judge
Liman: Are you saying the
diversion would be rare?
FHA lawyer: More than on other
scenarios. COVID resulted in
less traffic, now there's
more Now MTA lawyer: The
NYC area has the worst
congestion in the country,
despite having the most
extensive public
transportation system. This
program will benefit the CBD
[Central Business District]
Judge Liman: It
will increase traffic in some
areas? MTA: That's true MTA
lawyer: The Battery Park City
plaintiff brought a NEPA
lawsuit pro se. Then after the
statute of limitation other
plaintiffs joined, claims
related to other areas of the
city. They claim they
relate-back, it's an
indefinite snowball Judge
Liman: See Rule 15
Judge Lewis J. Liman by elizabethwilliamstudio.com
courtesy to Inner City Press
Judge Liman: If I decide that
the appropriate remedy is a
remand to the agency for
further analysis - it's not
infinite. I might rule, you
have to do an EIS before the
project - that could provide
redress.
MTA lawyer: Let
me switch to standing
MTA: The Battery Park City
residents would actually
benefit. Increased traffic on
West Street is completely
speculative. There is no
concrete injury.... Battery
Park City is not an
environmental justice
community.
MTA lawyer:
Plaintiffs can't show timely
comments on the EA- Judge
Liman: The Public Citizen case
is not on point here MTA
lawyer: I agree, that was not
about late submission. But its
holding does mean the
plaintiff have to frame their
comments for the agency
Judge Liman: They
are saying, We have standing
and the agency did not
respond. The litigator does
not have to be the
commentator. Do you dispute
it?
MTA lawyer: Their
forfeited their issues. They
couldn't have relied on others
comments, since they couldn't
see them MTA lawyer: In
terms of environmental
justice, it's not a statutory
component of NEPA. Plaintiffs
have not challenged mitigation
of strictly environmental
issues. EJ is a different
standard. The mitigation is
sufficient.
MTA lawyer:
Environmental justice is not
statutory, it's just an
Executive Order. Judge Liman:
So it's not subject to APA
review? MTA lawyer: No, the
majority of circuit say it's
subject to arbitrary and
capricious review.
"Institutional racism et
cetera" Judge Liman: We're
back. Defendants first.
AUSA: I'm
counsel for the Federal
Defendants: the first claim is
time barred. The second, the
NEPA failure to supplement
claim is not ripe
yet.
Inner City
Press will report the results
- including in the New Jersey
case(s)
***
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