The bistate Gateway Development Commission is suing the U.S. Department of Transportation to release frozen funds for the boondoggle Hudson River passenger rail tunnel, a $16 billion misuse of federal money, before the special U.S. Court of Federal Claims in D.C.
DOT should be the one lodging the complaint that the tunnel, as currently designed and funded, is a wasteful extravagance that does exactly zero to improve and expand service and explicitly violates federal law and DOT’s rules.
DOT must use that leverage over billions to force Gateway to be modified into something useful that expands service. If GDC and New York and New Jersey won’t agree, then pull the plug and save $16 billion.
This is an editorial, like all our previous writings on Gateway going back a decade, but it is based entirely on facts in GDC’s own documents that they prepared and submitted to the Federal Transit Administration.
GDC’s lawyers, in their papers filed before Judge Richard Hertling say that this is a simple breach of contract case, that DOT, under the Biden administration, signed binding agreements to fund $16 billion and the Trump administration is reneging, using a phony excuse of noncompliance with new Diversity, Equity, and Inclusion rules.
GDC wants an expedited decision and Hertling has ordered DOT to respond on Friday and will hold a hearing next Tuesday.
The DEI reasoning might be made up by the Trump administration, but what is rock solid fact is that the biggest part of the grant package, the $6.88 billion Full Funding Grant Agreement No. NY-2024-015-00 is completely invalid.
The FFGA was hurriedly signed on July 8, 2024, 11 days after Joe Biden’s disastrous debate performance on June 27 and 13 days before he quit the race on July 21.
Longstanding federal law, 49 U.S. Code § 5309, says that such a “New Start” grant is “a new fixed guideway project that is a minimum operable segment or extension to an existing fixed guideway system.”
The new Hudson tunnel is neither. It is a repair project or a redundancy project or a reliability project or a resiliency project or a state of good repair project. But it is not a New Start.
The proposed Interborough Express connecting Brooklyn and Queens is a new fixed guideway project. Bringing the Second Ave. subway from the East Side’s 96th St. up Harlem’s 125th St. (which DOT has also frozen) is an extension to an existing fixed guideway system.
In the spreadsheet templates that GDC were required to submit to FTA over the years seeking the FFGA, the added transit trips due to the tunnel were always zero. The same for any environmental benefits and vehicle mile of travel (VMT) and congestion relief. Zero, zero, zero. If the nullity was properly entered into the spreadsheet, it would be dividing by zero, which is undefined and can never be done.
The tunnel went through the mandated environmental approval process faster because there were no added riders. So how can the tunnel be a New Start? It can’t. A political decision was made by the prior DOT to allow it, but wasn’t legal.
There are also other violations, like GDC lying in the formal application for the FFGA on a pertinent fact that the existing tunnel under the Hudson has a “full closure of one tube each weekend for a 55-hour window beginning on Friday evening and ending early on Monday morning.”
DOT under Biden furthermore changed how the loan from the Port Authority was to be factored in weighing the local financial commitment. For years, the loan was considered “planned,” which wasn’t good enough. But then suddenly the Biden DOT mysteriously upgraded the loan to “budgeted” even though nothing had changed.
And the Biden DOT, in its first year, also buried a Financial Assessment Report on the tunnel that would have shown that the project was not qualified.
But those are minor compared to the fact that the $6.88 billion grant can be revoked. DOT has the upper hand: use it to turn Gateway around or kill it.
