Fourth lawsuit filed over Kensington project, this one over environmental review (2024)

The lawsuits over the Kensington Expressway project keep coming.

A second lawsuit charging the state Department of Transportation with failing to conduct a more robust environmental review for the project has been filed in State Supreme Court.

The New York Civil Liberties Union Racial Justice Center filed the suit Friday, joining three other lawsuits filed at the end of last week..

“The New York State Department of Transportation’s refusal to thoroughly study the environmental impacts of the Kensington Expressway project endangers the Humboldt Parkway neighborhood near the project site – a predominantly Black community that has carried the burden of decades of environmental racism,” said Lanessa Owens-Chaplin, director of the Racial Justice Center and one of four attorneys working on the lawsuit.

The court action, which claims the DOT violated the State Environmental Quality Review Act and the Climate Leadership and Community Protection Act, said the project’s aim of reconnecting a community severed by construction of the highway in the 1960s fails to address the air quality and multitude of health ailments that came in its wake and could make conditions worse.

“There is strong evidence that the project will exacerbate the already-poor air quality in the Humboldt Park neighborhood, including increasing exposure to harmful particulate matter and other air pollutants linked to an increased risk of developing chronic respiratory diseases, cardiovascular problems and lung cancer,” Owens-Chaplin said.

Critics of the project have called for the more thorough environmental review. The lawsuit was filed on behalf of Humboldt Park residents Gwen Harris and James Ragland.

“Before the Kensington Expressway was built, we never heard anyone talk about respiratory illnesses,” said Harris, 81, who lives near the project site. “After construction, air quality was a huge concern for our families, and now, today, I’m one of many who has asthma and lung cancer.

“This project should make us safer and healthier, not the opposite.”

Owens-Chaplin said the DOT committed to the more comprehensive environmental impact statement for other large-scale highway projects, including the Rochester Inner Loop, the I-81 project in Syracuse and the Brooklyn Bronx Queens Expressway in New York City. Yet, when it came to the Kensington Expressway project and its impact on the East Side, they opted for the environmental assessment, which takes less time to complete.

“What was alarming to us was there wasn’t an environmental impact statement on a project of this size,” Owens-Chaplin said. “Typically, you do one because it is much more robust and provides a lot of information in great detail. An environmental assessment is just simply a summary of the DOT’s conclusions.”

The DOT said an environmental assessment was sufficient and an environmental impact statement was unnecessary, and that decision was backed by the Federal Highway Administration, which has an oversight role in the process.

After Gov. Kathy Hochul announced the Route 33 project in her State of the State address in January 2022, she said she hoped to complete the review process in about two years, considered a quick timetable for a project of that magnitude. The project received the green light in February, 25 months later. Hochul said in making the announcement she hoped to see shovels in the ground late this year or early 2025.

Aymanuel Radford, a Buffalo resident and Civil Liberties Union organizer, said an environmental impact statement is critical for providing additional information many in the community seek.

“Without an (environmental impact statement), this new project is repeating the awful mistakes of the past,” Radford said.

One of the lawsuits filed Thursday – an Article 78 proceeding that allows lawsuits against actions taken by New York State agencies – also said the DOT was wrong in using an environmental assessment rather than the more demanding environmental impact statement. The plaintiffs are the East Side Parkways Coalition and 51 residents, most of them from the East Side.

A second Article 78 lawsuit claims that the project violated the Climate Leadership Community Protection Act passed in 2019. The Climate Act has the goal of reducing greenhouse emissions rapidly warming the planet, and the lawsuit says the Kensington project fails in all ways to do that. The plaintiffs are the Western New York Youth Climate Coalition, Coalition for Economic Justice and Citizens For Regional Transit.

The third lawsuit, filed under the Public Trust Doctrine, which doesn’t have a statute of limitations, claims the removal of Humboldt Parkway required an act of the New York State Legislature that never happened. It also says the project violates the so-called “Green Amendment” that became law in 2022. The plaintiffs are the East Side Parkways Coalition and 60 residents, most of them from the East Side.

Alan Bozer, a Phillips Lytle attorney involved in the filing of the first three cases, said a federal court case claiming the DOT violated the National Environmental Policy Act will be filed by July 15, the deadline for filing in federal court.

The lawsuit will call into question actions taken by Janate “Solar” Ingram, who worked out of the DOT Outreach Office but was paid by LaBella Associates, an engineering contractor working on the project. She asked people to fill out comment cards in support of the project at an East Side Parkways Coalition meeting on Nov. 10, according to several witnesses.