NYSDOT Can’t Show That Backdoor Expansion of SI Expressway Is Legal

For over a year, the NYSDOT has been allowing cars with at least two occupants to use what was a bus-only lane on the Staten Island Expressway in the westbound direction (the eastbound bus lane was opened to carpools in April).  The agency is also proposing an extension of the bus/HOV-2 lanes, from their current end at Slosson Avenue, through to Victory Boulevard and Richmond Avenue. But NYSDOT hasn’t shown how these projects can legally proceed without federal environmental review, and a Tri-State request for information under the state Freedom of Information Law has only turned up more questions.

NYSDOT has allowed carpools to enter a bus lane on the Staten Island Expressway.

NYSDOT has allowed carpools to enter bus lanes on the Staten Island Expressway.

Not least of NYSDOT’s concerns is that its documentation highlights lane conditions that are dangerous for car drivers, such as sight distances that are standard only for the higher profile of a bus.  As Tri-State has documented in the past, the state’s normal immunity for road design in liability cases may not apply where a known danger is not remedied.

According to “spot speed readings” taken in the westbound bus/HOV-2 lane, the additional car traffic is light enough to avoid adversely affecting bus travel times.  However, the only formal analysis of the lane’s performance excludes solo drivers illegally using the lane, who make up 44% of all vehicles. Furthermore, the agency has not studied how opening the eastbound bus lane to cars has affected its performance.

The bus lanes were originally constructed without an environmental review because federal environmental law exempts certain transit improvements from this requirement.  With the conversion to HOV-2, the no-longer-bus-only lane is functioning as brand new highway capacity, a category of project not exempted by the law, the National Environmental Policy Act.

For the extension of the lane, NYSDOT is claiming a type of exemption from environmental review [23 CFR 771.117(d)] that requires approval from the Federal Highway Administration. Tri-State’s Freedom of Information Law request sought documentation of FHWA’s approval of exemptions for either the lane conversions or the planned extension.  We were told that no such document exists in NYSDOT’s files, meaning that the agency may be skirting federal law.

Interestingly, the carpool lane conversions were initiated as pilot projects — which does not excuse them from environmental review — but NYSDOT already appears to be referring to them as a permanent feature of the expressway. A detailed review is necessary to answer the questions, legal and otherwise, that surround the lanes.

Image: Via Staten Island Advance.

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