When New York City implemented its new congestion pricing program earlier this year, opponents tried to block it in court citing violations of a law familiar to American infrastructure practitioners: the National Environmental Policy Act (NEPA). As in many other NEPA lawsuits against infrastructure projects, those opponents claimed that the Metropolitan Transportation Authority (MTA) didn’t adequately study the environmental and social impacts prior to starting the program.
However, when the Trump Administration withdrew congestion pricing’s federal authorization a few months later, and the MTA sued to block the change, it claimed a violation of the very same law: NEPA. That is the beauty of open-ended procedural laws enforced by broad private rights of action. They can be abused to impede the government from starting a program, and also impede the government from cancelling the program later. No matter what course the state wants to take, interested parties have the power to block it.
This anecdote a good illustration of the much broader trend described in Why Nothing Works: Who Killed Progress–and How to Bring it Back by Marc Dunkelman. Dunkelman is a fellow at the Watson Institute for International and Public Affairs at Brown University. Why Nothing Works is, first, a history of the progressive movement from the centralizing authority of the New Deal to the vetocracy of procedural impediments that block effective government, and, second, a broad argument for that same progressive movement to be more open to centralizing government authority today.
