GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2026

Status

Accepted

Abstract

Transportation law has a congestion problem: our federalist system of government allows federal and state actors to stymie innovative, locally driven projects that aim to reduce driving. This problem is illustrated in the decades-long legal battles over New York City’s plan to impose “congestion pricing” to toll drivers entering certain parts of Manhattan. Overcoming grandstanding elected officials, lawsuits resting on state and federal supremacy, and even a federal legislative override, congestion pricing was finally launched in January 2025. New Yorkers and suburbanites alike almost immediately started benefiting from cleaner air, faster commutes, safer roads, and increased economic activity and productivity—plus boatloads of money for transit improvements. Just six weeks later, however, the Trump administration Secretary of Transportation Sean Duffy announced he was unilaterally rescinding federal approval for the program, once again throwing it into legal limbo.

Through the lens of congestion pricing and its unique characteristics, this Essay illustrates the relatively limited power of local and regional authorities to advance innovative transportation initiatives through the federal and state permitting gauntlet. Part I relates the congestion-pricing backstory in New York City from its origins in the late nineteenth century, to federal and state officials’ unwelcome intervention at key points, to its approval last year. Part II covers the latest attempt to roll back congestion pricing and the pending case of Metropolitan Transportation Authority v. Duffy, a federal lawsuit filed against Secretary Duffy by the regional body that operates the New York City congestion pricing program. Part III argues that new legal approaches that safeguard local interests are necessary. It identifies several judicial and congressional measures that may afford local governments more latitude to plan and carry out their transportation priorities and that may offer innovative, decarbonizing projects a higher priority in permitting.

GW Paper Series

2026-05

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