The Kensington Expressway’s Ferry Street overpass in 2021, © Andre Carrotflower, CC BY-SA 4.0
Where’s The News?
Over the past few years, The Buffalo News has produced consistent and in-depth coverage of the state and federal government’s plan to spend over one billion dollars transforming three-quarters of a mile of East Buffalo’s portion of the Kensington Expressway into a tunnel, as well as community opposition which has resulted in five lawsuits over the project.
A veteran News journalist, Mark Sommer, produced much of that coverage. Following his resignation to protect younger hires from layoffs, the newspaper has not reported on last week’s court appearance—which saw arguments in three of the cases—despite its editorial board having published an endorsement of that court appearance and called on the state to complete a comprehensive environmental study “to answer legitimate concerns.”
Four local television networks filmed the hearing and broadcasted segments including clips of the arguments and interviews with the plaintiffs’ attorneys and their clients. The Law Office of Stephanie Adams, a small part of the legal team representing the East Side Parkways Coalition and Buffalonians residing in the vicinity of the expressway, provides this long-form story in the absence of coverage by Buffalo’s only remaining daily newspaper. We hope it will return to this important beat in November.
Lawsuits commence
In February 2024, Governor Kathy Hochul announced the state’s “negative declaration” for the project’s environmental assessment, which asserts that it will not have a significant impact on the environment, the community, or local traffic. Four months later, the East Side Parkways Coalition, the Western New York Youth Climate Council, Citizens for Regional Transit, the Coalition for Economic Justice, the New York Civil Liberties Union, and about sixty individuals challenged the negative declaration by suing the New York State Department of Transportation, the City of Buffalo, and the Federal Highway Administration.
The goals of the four state lawsuits, all pending before New York State Supreme Court Justice Emilio Colaiacovo, include ordering the state to complete an environmental impact statement, compelling compliance with a greenhouse gas emission reduction law called the Community Leadership and Climate Protection Act, vindicating the environmental protections of our state constitution’s Green Amendment, and ultimately restoring the Humboldt Parkway, which was destroyed in the 1950s in order to construct the expressway. The state cases are being heard through a single, consolidated scheduling process but remain separate actions with unique but overlapping arguments relating to the past and future of the parkway and the expressway.
Notably, the parkway’s namesake, Prussian polymath Alexander von Humboldt, is considered a father of environmentalism and the first scientist to write about human-induced climate change. The Kensington, on the other hand, derives its name from a central neighborhood of London, England—a city whose air pollution killed up to 12,000 people during a 5-day weather event in 1952 known as “the Great Smog.” While New York State Highway Law Section 343-O designates the portion of the Kensington Expressway within city limits as the "Reverend Dr. Martin Luther King, Jr. Expressway," the state’s transportation department named the tunnel project—which is squarely within city limits—the “Kensington Expressway Project.”
a temporary restraining order
On October 7th, 2024, Judge Colaiacovo granted the coalition’s request for a temporary restraining order to prevent work from commencing on the expressway project. The judge did not extend the order to prevent the state from awarding contracts for the project. Attorneys for the state said that an award of the project’s first contract, which would include replacement of the Best Street overpass, was "imminent,” but—in response to questioning by the judge—admitted not knowing its status or any further details.
Four days later, Governor Hochul announced the award of the $44.5 million dollar contract to Union Concrete and Construction Corporation of West Seneca, despite knowing that work was blocked by lawsuits. The same day, Hochul responded to the restraining order, telling The Buffalo News, “We get sued every single project. There are always legal delays. It’s the nature of major, large-scale projects in the State of New York.”
In the days preceding the next court date, October 25th, the pace of new court papers accelerated to a multiple filings per day across four dockets. The judge pushed back hearing arguments on some motions previously scheduled for the 25th. No motions to dismiss, nor any motion in the case brought by the New York Civil Liberties Union, would be heard that day. The questions still at play included whether the restraining order would remain in effect and whether a preliminary injunction would replace it.
The court was alerted that scores of plaintiffs, petitioners, and supporters were planning to attend, and the judge changed the hearing’s venue to the largest courtroom in the building.
October 25th
One hour before the 2 P.M. hearing, members of the East Side Parkways Coalition wearing forest green t-shirts reading, “Restore the Humboldt Parkway,” gathered in front of the towering granite courthouse at 92 Franklin Street. They hugged, laughed, and speculated: Would the temporary restraining order continue? Would the judge rescind it for the Union Concrete contract? Would he comment on the merits of the cases?
Attendees started to file in through security at about 1:30. When the courtroom opened for people to take their seats around 1:50, the mood was expectant. The room was filled.
The hearing opened with a presentation from East Side Parkways attorney Adam Walters. Because a preliminary injunction can only be granted if a party asking for it can show a likelihood of winning, Walters described the state’s deficient scrutiny of the project’s impacts: a meager half-page transportation analysis with a single sentence addressing traffic congestion, no consideration of the noise that would be emitted by excavation, blasting, and construction, no predictions as to how blast vibrations would impact the environment and adjacent structures, and inadequate consideration of the effects on air quality.
Walters argued that the transportation department’s analysis is belied by air quality data published by the New York State Department of Environmental Conservation, and he described the serious traffic implications of the project, arguing that it would cause daily backups to the city line for at least four and a half years.
When it was the state’s turn to present, the judge raised the issue of the potential insufficiency of environmental assessment, using the Scajaquada Creek—encased underneath the expressway—as an example of a potential complication. For each concern about insufficient review, the state’s attorneys stated that the environmental assessment was sufficient or that mitigation and surveys would be conducted after the start of construction (through an approach called “design-build”).
When the judge asked the state’s attorney Patrick Omilian why there was no evaluation of the project’s potential effects during construction, Omilian replied, “Exactly, there’s no significant impact expected," which elicited an audible reaction from the audience. Chuckles and gasps rose and fell as the judge replied, “That’s hard to believe,” and reminded the audience to maintain decorum.
An attorney for Union Concrete appeared at the hearing too, and requested permission to submit arguments against the temporary restraining order and any preliminary injunction, claiming that each would hurt his client. Arguing against this request, attorneys for the petitioners pointed out that the state had ample time and opportunities to address contractor concerns after receiving notice of the lawsuits and prior to awarding the contract.
Finally, the state attorneys argued for a $445,000 dollar bond to to off-set potential inflationary costs of further delays to the project. East Side Parkways attorney Alan Bozer argued for a nominal amount, $500 dollars or more, and pointed out that highway cost projections for the fourth quarter of this fiscal year are deflationary and that the state had not demonstrated damages warranting a higher bond.
A Temporary Ruling
At the conclusion of two hours of legal arguments, Judge Colaiacovo carefully read aloud a decision that denied the state’s motion to strike from the record references to the Department of Environmental Conservation’s air quality data, denied the motion to intervene by Union Concrete, requested the parties to each submit a memorandum of law with their best arguments for or against a preliminary injunction, extended the temporary restraining order, and ordered the petitioners to post a $10,000 dollar bond pending the judge’s anticipated ruling on November 18, 2024.
Following adjournment, members of the East Side Parkways Coalition and their attorneys gave confident remarks for the television cameras that had reassembled in the hallway outside the courtroom, and state officials left without a passing word.
The East Side Parkways Coalition is accepting donations to its legal fund for the advancement of environmental justice in East Buffalo, where air pollution has resulted in pulmonary disease, cancer, and life expectancy rates worse than up to 99% of the state. A few years ago, greater Buffalo came together to tell the East Side that we are one, and that we choose love. No matter where you live, you can donate here to make good on that promise.