Hochul’s lack of due diligence on expressway

The governor has earmarked $1 billion to cover a portion of the Kensington Expressway without obtaining updated cost estimates or assessing the environmental impact. Where will all those trapped fumes go?

Gov. Kathy Hochul has committed $1 billion to cover a portion of the Kensington Expressway without benefit of any studies to assess the project’s updated cost or impact on the environment and health of East Side residents.

Meanwhile, the state governor’s office and Department of Transportation are slow-walking Freedom of Information requests from Investigative Post seeking documents related to the project. 

The state FOI law generally requires agencies to provide records within 20 business days of receiving a request. Twenty-six business days have passed since Investigative Post filed its requests. The DOT has said it intends to take up to 45 business days — not to necessarily provide the records, but to provide an update. 

The DOT has previously commissioned two studies that considered the future of the Kensington Expressway.

One conducted in 2012 considered options to reconfigure or cover the expressway in order to restore Humboldt Parkway and improve the surrounding community.  The study, however, didn’t offer any cost estimates or assess environmental or health impacts. 

The DOT then partnered with University at Buffalo’s Regional Institute in 2014 to study the economic impact of decking the expressway. It estimated the project would generate an estimated 950 jobs during the five years of construction and 95 long-term positions. Covering the expressway would also increase real estate values of nearby properties by tens of millions of dollars.

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In November 2019 the DOT held a public meeting to present renderings and site plans for the parkway restoration based on design concepts from the original 2012 study. Two involved concepts to cover the expressway in whole or part. Costs were estimated at $300 million to $580 million. That price tag has risen by an undetermined amount because of inflation, induced by the pandemic and otherwise.

In January of this year, Hochul announced a fast-tracked environmental impact assessment for the project. Nearly six months later, that assessment has yet to start, however.

The work won’t begin until after a public information meeting scheduled for June 30, according to documents obtained from the Department of Environmental Conservation through the FOI Law.

Despite the lack of an environmental assessment or updated cost estimates, state officials on May 6 announced $1 billion in state funds to cover a portion of the expressway and make related improvements.

That same day, Investigative Post filed FOI requests with Hochul’s office, the DOT and DEC seeking records and communications regarding the project since the start of 2020.

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According to state law, an agency has up to five business days to acknowledge receipt of an FOI request. The agency then has up to 20 business days to produce records or state a legally sound reason why they were unable to. 

The DEC provided a handful of records, including a request from DOT to participate in the environmental assessment, which the DOT subsequently said would not start until the upcoming community meeting is held. The DEC responded by agreeing to participate.

Hochul’s office has yet to produce any records. Nor has the DOT. 

Investigative Post challenged DOT’s intention to take up to 45 days to simply provide an update. DOT officials, in phone conversations, said it could take that long because the department doesn’t have sufficient staff to provide records any sooner. A lack of staff is not a legally permissible reason to delay release of records under FOI, however.

DOT officials did not return phone calls from Investigative Post seeking comment for this story.

Christina Neitzey, an attorney with the Cornell Law School First Amendment Clinic, cited the FOI law in saying that government agencies must “state, in writing, both the reason for the inability to grant the request within twenty business days and a date certain within a reasonable period.”

Neither the governor’s office nor the DOT has done so.