Buffalo, N.Y. (WBEN) - The fight against the massive $1 billion Kensington Expressway project continues with the East Side Parkways Coalition taking charge in the push against the transformative project along Humboldt Parkway.
The coalition announced on Thursday that legal action is being taken against the New York State Department of Transportation (DOT) on two different lawsuits, with a third lawsuit also likely to stem from this.
So far, more than 50 plaintiffs have signed on to the lawsuits that attorney Adam Walters from Phillips Lytle LLP is pursuing. Most of those plaintiffs are those who live along Humboldt Parkway, but it's also folks in the surrounding neighborhood, and even some folks further away who just think this project is a bad idea.
"Our basic claims are as follows," Walters laid out with Joe Beamer on WBEN. "First, we're challenging the adequacy of the environmental review of the project that was conducted by DOT. We believe that DOT made several critical errors in the environmental review process, including the failure to prepare an environmental impact statement. That's basically the first claim
"We are also challenging the adequacy of the DOT's analysis of the project, and its compliance with a new law that the legislature adopted a few years ago, the Climate Leadership and Community Protection Act. That law was really specifically targeted to protect disadvantaged communities, like the one where the Kensington cuts it in half. DOT didn't comply with its obligations to analyze the project under the CLCPA."
Walters says the lawsuit will also challenge the DOT's approval of the project in East Buffalo.
"The way they have designed it, there are going to be these, we call them, toxic plumes, but basically, they're putting a three quarter of a mile cap, building a tunnel over the Kensington. And at the end, that's where all the emissions from the cars and the tires, etc. That's where they come out in particulates," Walters explained. "So you've got these toxic plumes at the end, and we really think that violates the new constitutional amendment that New York put through, the right for every New Yorker to clean air and a healthy environment. We're challenging on that basis as well."
One final major prong as part of this legal battle is the potential lack of the State Legislature getting the right approvals to take the park land that was Humboldt Parkway, which was designed by Frederick Law Olmsted.
"On that basis, we think we have another good way to try and get DOT to take a second look, and really reconsider what they're proposing," Walters said.
Walters claims it's the DOT's lawful obligation to perform a thorough environmental analysis for a project of this magnitude. He says the DOT's environmental assessment was less work than what should be expected.
"They did a basic assessment and said, 'Gee, we've looked at the issues, and we don't see the potential for any adverse environmental impacts.' That's just silly," Walters said. "They're going to be constructing this thing for four-and-a-half years, they're going to be blasting 50 feet from people's homes. I think they've said in their own studies that the noise levels will be around 80 decibels. Those are insane numbers in a residential neighborhood. And then to say there's no significant adverse impacts, that's silly."
Walters says highways don't make sense in dense urban neighborhoods, calling them a disaster. While the DOT has looked at highway removals in other urban environments in cities like Rochester and Syracuse, Walter feels they had no interest in doing so for Buffalo.
"From Day 1, they said removal of the Kensington is not an option. Another reason we really want to see them do an environmental impact statement is because in there, they have to look at reasonable alternatives, and we do think one of the reasonable alternatives needs to be removal," Walters said.
From here, the lawsuits will be getting assigned to a judge in the next few days. The Article 78 proceeding is an expedited proceeding, which means it will move along pretty quickly.
"They're not precluded from moving forward unless we ask for and receive an injunction, either a temporary restraining order or a preliminary injunction," Walters explained. "We'll certainly be evaluating that as we move forward, we'll see how quickly it starts to move through the court system. But if we need to move for injunctive relief to try and stop them, should they start moving forward, we certainly will do that."
If the move for injunctive relief is not granted and the state starts to move forward with the project, the legal action would be allowed to continue. However, if the ask for an injunction is not there and construction gets started with substantial completion getting closer, the case will get dismissed.
"We'll certainly be moving for injunctive relief, if that becomes necessary as things move forward. Obviously we're hopeful that we can sit down with DOT and try to work out solutions that makes sense, but we'll go one step at a time," Walters said.