The USDOT issued a memorandum calling for any equity-inspired projects to be scrapped—that could include the Kensington Expressway project as well.

Author: Nate Benson (WGRZ) Published: 9:00 PM EST February 11, 2025 Updated: 11:26 PM EST February 11, 2025

BUFFALO, N.Y. — In the wake of Friday’s ruling in the lawsuit between the NYS Department of Transportation and the East Side Parkways Coalition, the question now is–what happens next with the $1.5B project? The answer is complicated.

On Friday, Judge Emilio Colaiacovo issued a ruling that the NYSDOT must complete an Environmental Impact Statement in order to move forward with the Kensington Expressway cap and tunnel project.

"Let me say this, I'm not surprised," said Ron Epstein. "Anytime you have a major reconstruction project that involves community impacts, there are always going to be groups who want to see you do the maximum level of effort compared to others who would like to see the project get underway much sooner.

Epstein is the former CFO and Executive Deputy Commissioner for the NYSDOT. Currently he serves as the president and CEO of the NY Construction Materials Association. "There's always that push and pull between the environmental enhancement, the environmental assessment and the environmental impact statement," Epstein said. "What I would say is, what has changed here is the role of the federal administration." On January 29, the USDOT issued a memorandum instructing department employees, "to identify and eliminate all orders, directives, rules, regulations, notices, guidance documents, funding agreements, programs, and policy statements, or portions thereof, which were authorized, adopted, or approved between noon on January 20, 2021 and noon on January 20, 2025, and which reference or relate in any way to climate change, "greenhouse gas" emissions, racial equity, gender identity, "diversity, equity, and inclusion" goals, environmental justice, or the Justice 40 Initiative. "

Based on the language of that order, funding for the Kensington Expressway project could be considered an equity program, as it was part of the USDOT "Reconnecting Communities" program.

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The current plan concludes in the 2026-2027 fiscal year, and while $1B has been allocated for the 4,100ft cap and tunnel in that budget, if construction doesn't begin, the NYSDOT may need to shift the funds elsewhere. Governor Hochul floated that idea last year. Epstein explained that if the state concedes and completes the EIS, and the money is not encumbered in the current spending window, the DOT could simply shift the project to the next five-year plan.

"My interpretation of what was being discussed is that the state is taking the necessary steps to make sure we do not lose any federal dollars, and they are encumbered on projects that are ready to go and ready to go now," Epstein said. "If this is ready to go in the future, I don't know why it would not be funded."

Political war games. Good chance this road needs the improvement but may not get the support it needs due to funding allocation tied the Biden Administration. But to use the Environmental Impact Statement (which take a long time and money to complete!) as a scapegoat to cancel the project is ridiculous.