Environmental Concerns on Kensington Project; Work Delayed

Just days after affirming an injunction to prevent work on the controversial cap-and-tunnel project that would superficially reunite the neighborhoods between Delaware Park and Martin Luther King Jr. Park that were divided by the construction of the 33/Kensington Expressway, the judge in the case further called on New York State to show that the massive project will not damage the environment or the health of people who live there.

In State Supreme Court Monday morning, Judge Emilio Colaiacovo reiterated his belief that the New York State Department of Transportation should have required and conducted a more thorough environmental impact statement, instead of the environmental assessment it incorporated in support of the project, which would create a six-lane tunnel between Best and Sydney streets going into downtown Buffalo.

“In what is anticipated to be this community’s largest, most expensive, most disruptive, and most intensive construction project, it is baffling how the state, which portrays itself as the guardian of the environment, cut corners and ignored rules that any other developer would be required to follow,” Judge Colaiacovo said.

The proceedings on Monday pertained to whether the state violated public trust when the expressway was originally built, whether the state is violating the climate act by building infrastructure that could increase air pollution and other harmful emissions, and whether the state is in violation of its own Environmental Quality Review Act by failing to perform a thorough environmental impact statement. The failure to complete an EIS has been brought to attention several times in the judge’s comments and his ruling on Friday.

A total of $55 million in federal funding has been secured for the project, which Gov. Kathy Hochul has been pushing to start construction on by the end of the year. She has previously warned that construction delays might result in the project losing some of that federal funding, a sizable portion of the $1 billion overall estimated cost.

But the groups that oppose the cap-and-tunnel project, namely the Eastside Parkways Coalition, WNY Youth Climate Council and residents who live in the neighborhoods adjacent to Humboldt Parkway, the organizations suing the state to stop construction, say the potential cost to their health is far greater.

Judge Coliacovo appears to agree, at least in part, saying in court Monday that if the state had conducted the environmental impact statement from the beginning, “petitioners would really have no argument to stop it. The state not abiding by the requirements to do the EIS caused this delay because I can’t imagine the state didn’t predict that there would be some court action to prevent this project from going forward.”

For now, construction is delayed at least 60 days as the judge considers his final ruling in the handful of lawsuits filed against the state. The Eastside Parkways Coalition and residents are required to post and carry a $100,000 bond, which would be used as compensation for the DOT should it be found to suffer any damages if the injunction is later found to be improperly granted.

“The end game is to give back a community, which is ravaged by disease from all this, give it back the park that was there for 100 years,” explains Alan Bozer, an attorney on behalf of the Eastside Parkways Coalition. In his decision, the judge added that the project “will undoubtedly cause traffic disruptions, emit greenhouse gasses…and otherwise impair local neighborhoods.”

The state disagrees. “This was an extremely thorough (environmental assessment). The DOT looked at all the environmental impacts that it identified through analysis, and at the end of the day, I don’t believe there would be a different result through an EIS process,” said attorney Patrick Omilian.