“One cannot build a Tim Hortons in Western New York without performing an EIS and having the proper SEQRA classification,” the judge wrote in his decision. “Why the state thought it could simply entertain a project of this magnitude and not comply with what it otherwise orders others to perform remains a mystery.”

State officials have said they expect any impacts would be “minimal.” A NYSDOT representative said via email that the department “is in receipt of the rulings and evaluating next steps.”

NYSDOT’s plan was to cap 4,150 ft of the six-lane highway, also known as State Route 33, from Dodge Street to Sidney Street in East Buffalo. The cap would become public green space. The project would have also involved rehabilitating 9 miles of local streets and enhancing them with pedestrian and cyclist infrastructure, replacing a bridge and building a roundabout in place of an interchange. 

The East Side Parkways Coalition, the group that filed the petition on which the judge issued the decision, wants NYSDOT to instead restore the Humboldt Parkway, which had been a tree-lined boulevard designed by Frederick Law Olmsted that connected two parks. In the 1950s and ‘60s, the parkway was replaced with the below-grade Kensington Expressway, which divided neighborhoods and displaced mostly-Black residents from hundreds of homes. 

Capping the expressway would have ensured that the two parks, Martin Luther King Jr. Park and Delaware Park, would never be reconnected with a parkway, according to the coalition. They are also concerned about vehicle exhaust from inside the tunnel becoming concentrated plumes at the two ends near schools and other public facilities. 

That’s a concern shared by the New York Civil Liberties Union, which has also sued NYSDOT over the proposal, but NYCLU’s suit is focused on the state’s Climate and Community Leaders Protection Act, which requires state officials to “prioritize the safety and health of disadvantaged communities.” Lanessa Chaplin, director of NYCLU’s Racial Justice Center, points to an expected 6% increase of emissions at the tunnel portals. 

“That’s really alarming and concerning, because that area already has some of the highest rates of air pollution in the county,” she says.

Chaplin adds that she hopes the environmental review will examine that figure more closely—she suspects the actual emissions impact may be higher—and result in mitigation measures. 

The judge has not yet made a decision in NYCLU’s case. A hearing is set for April. 

“I think that this project, by increasing pollution in an area that already has the most pollution, is in direct violation of the climate act,” Chaplin says. “The state does have a mandate to stop doing this behavior that has systematically been done in communities that have less political power, low-income communities, rural communities, predominantly minority communities—where it becomes a dumping ground for these types of projects.”