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Streetsblog Asks Metro Board to Waive Attorney Client-Privilege on Najarian’s 710 Big Dig Motion

5:00 PM PDT on August 1, 2013

SBLA Metro 710 Priviledge

At last week’s Metro Board meeting, County Attorney Charles Safer responded to an April motion by Board Member Ara Najarian containing questions on the I-710 Gap Closure Project. The Najarian motion sought the answers to three basic questions concerning the relationship between Caltrans and Metro on this project.

Specifically, Najarian sought to see who was the final decision maker on the project, who would be liable to defend the EIR for the project in court, and whether or not there is an MOU concerning the project between the two agencies.

As the County Attorney and Metro Board of Directors are refusing to answer these basic questions to the public, Streetsblog is formally requesting that Metro reverse its position and waive attorney-client privilege. If they don't, Streetsblog may seek other avenues to get the information disclosed to the public.

That the item even appeared on the agenda is almost completely due to Najarian's vigilance. Last Friday's draft agenda didn't include discussion of his April motion, despite a request that it be returned in 90 days, and he had to push just to get it discussed at all.

At last week’s meeting, it was revealed that Safer’s answers to these questions were not going to be made available to the public. Safer cited attorney-client privilege, leaving the Metro Board to decide whether or not such basic questions could be given to the public. As the report is still not public, the public can only speculate on what was in the report that required the Board to keep it from the public.

Here's my speculation: the report could reveal that in the opinion of the County Attorney both Metro and Caltrans have broken state law.

When Najarian first introduced his motion, he did it because Caltrans, not Metro, is listed as the lead agency for the project. Despite this, it is Metro, not Caltrans, who is paying CH2M Hill to complete the environmental documents provided under CEQA. There is no Memorandum of Understanding between the two agencies that is approved by the Metro Board of Directors.

California Public Resources Code section 21100(a) says "All lead agencies shall prepare, or cause to be prepared by contract, and certify the completion of, an environmental impact report on any project which they propose to carry out or approve that may have a significant effect on the environment. . . . ."

This means that the "lead agency" (Caltrans) has to prepare, or contract for the preparation of, the EIR. Metro (which is not the lead agency) cannot prepare, or contract for the preparation of, the EIR.

To make this even more clear, the Guidelines for compliance with CEQA in Title 14 of the California Code of Regulations provide in section 15084(a) (titled "Preparing the Draft EIR") "The draft EIR shall be prepared directly by or under contract to the Lead Agency. . . . " Title 14, California Code of Regulations section 15002(k)(3) similarly provides that "the Lead Agency . . . prepares an EIR. (See: Sections 15080 et seq.)."

When two or more agencies are working together, section 15050 provides that "one public agency shall be responsible for preparing an EIR or Negative Declaration for the project. This agency shall be called the Lead Agency."

Taken together, if Caltrans is indeed the lead agency and the decision maker, than Caltrans has to prepare the EIR itself (or contract itself for its preparation). Metro cannot legally contract with CH2M Hill to prepare the EIR, but claim that it is not the legal agency.

Metro and Caltrans put themselves into a difficult situation. Either Metro has to now admit that it is the "lead agency," notwithstanding its prior statements that it is not, or Caltrans as lead agency has to fund the EIR. There is no case law on such situations that I can find, but those opposing the I-710 Big Dig are already ruminating that either Metro is going to have to step up and make the decision on whether or not to go forward with the tunnel or Caltrans may have to start the environmental process over again.

Given the information publicly available that states that Metro and Caltrans have clearly violated state law and the secrecy with which Metro is now holding the answers to some pretty basic questions; we have to assume that Metro is indeed hiding something. If they're not, it would be very easy for them to prove me wrong...just release the memo from Safer to the general public.

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