Federal Lawsuit Filed Over Kensington Project in Buffalo

A Buffalo law firm has filed a fifth lawsuit against the current proposal to remake the Kensington Expressway, challenging the lack of an environmental impact survey before the proposal was approved by New York State.

In the suit filed Monday, Alan Bozer, an attorney with the firm of Phillips Lytle LLP, says on behalf of the East Side Parkways Coalition, WNY Youth Climate Coalition, Citizens for Regional Transit and 50 residents near the highway, that the Federal Highway Administration neglected to consider the bigger environmental impacts of capping the roadway by the construction of a tunnel.

The lawsuit claims the FHA violated the National Environmental Protection Act by taking only three days to approve the proposal when it was submitted and for failing to demand the environmental study.

“What we’d like to do is vacate that decision,” Bozer said. “The court will say that the Federal Highway Administration was wrong to have done this approval. It will then order the FHA to step back and redo it.”

The groups believe the proposed tunnel will further damage the health of residents near the roadway, as it will trap exhaust fumes from thousands of cars daily and concentrate those fumes in the neighborhoods closest to the tunnel to be built on three-quarters of a mile of the existing highway between Dodge and Sidney streets.

“Our claims on the tunnel remain the same as in state court,” said Adam Walters, another Phillips Lytle attorney. “There will be an increase in air pollutants, including particulate matter, at the ends of the tunnel. They haven’t really looked at what that increase will be on the people who live there and breathe that air in every day.”

Further, Walters claims the proposal would “reduce the traffic to one lane in each direction for 4 ½ years during commuting hours. Where will the cars go that choose not to get into the morning rush hour traffic jam that the Kensington Expressway will be? They didn’t look at that at all, and that traffic displacement is going to have a huge impact on the city of Buffalo for the next four to five years.”

Speaking on behalf of the East Side Parkways Coalition, Michael Gainer said the purpose of this fifth lawsuit, following four others filed last month, is to slow down and ultimately stop progression on a project the group and many residents feel was approved without the best interests of the community in mind.

“The big picture is for 15 years, the (Department of Transportation) has been trying to push through a project that they believe is the best project to meet their goals. In so doing, they have completely ignored what is in the best interests of this community.”

Bozer added that it is “incredible” that the state and federal authorities are prepared to spend $1 billion on a long-term construction project without fully studying the impact on the environment, from the loud blasting that will have to happen to build the tunnel and the dust and particulate matter that will be in the air as a result. “It just shows how quickly they want to get this approved, get by community opposition, and there’s a lot of opposition, and get into the construction phase.”

New York State Governor Kathy Hochul has said she wants to see construction started on the tunnel before the end of 2024.

The East Side Parkways Coalition is scheduled to meet this Thursday night, July 18, at the Delavan Grider Community Center, 877 Delavan Avenue, from 5:45-7:30 p.m.