Court Holds Agency May Not Cure its Failure to Analyze Project’s Potential for Increased Wildfire Risk
In a partially published decision in People ex rel. Bonta v. County of Lake (Oct. 13, 2024, A165677) __ Cal. App. __ [2024 Cal.App. LEXIS 667], the First District Court of Appeal affirmed the trial court’s ruling in favor of the California Attorney General, Center for Biological Diversity (CBD) and California Native Plant Society (collectively, the “Petitioners”) that a lead agency’s failure to address the potential for increased wildfire risk in a Draft Environmental Impact Report is a prejudicial error that cannot be cured in the Final Environmental Impact Report (FEIR). The decision suggests that even where a project may not result in a potentially significant increase in wildfire risk, the CEQA Lead Agency’s failure to adequately document this conclusion in the Draft Environmental Impact Report is fatal and requires the lead agency to restart the CEQA process. The court’s reasoning can be extended to any environmental resource and impact category that is within CEQA’s purview. While the Court of Appeal also affirmed the trial court’s ruling that petitioners’ other CEQA challenges were without merit, the court ordered preparation of an entirely new Environmental Impact Report.
At issue in the case was the County of Lake’s Environmental Impact Report for a proposed mixed-use project consisting of a luxury resort, residential estate villas, hotel units and related infrastructure across 16,000 acres in an area of Lake County known as the Guenoc Valley Ranch. After Lake County, as the CEQA Lead Agency, published the FEIR in 2020, a number of commenters—including the California Attorney General, CBD and the California Native Plant Society—asserted their concerns that the County failed to adequately address the increased wildfire risk that would result from increased human presence in the area and requested the County revise and recirculate the EIR. Petitioners also submitted comments raising concerns regarding the adequacy of the EIR’s analysis of greenhouse gas emissions and water usage. In response to these comments, the County elected not to recirculate the FEIR, and instead included an errata in the FEIR that explained why wildfire risks were anticipated to be less than significant. The FEIR also included additional discussion of greenhouse gas emissions mitigation.
The Attorney General, CBD and the California Native Plant Society filed petitions for writ of mandate under CEQA, alleging that the FEIR failed to properly disclose, analyze or mitigate the project’s wildfire impacts, greenhouse gas emissions, offsite water use and alternatives to the project. The trial court ruled in favor of the petitioners on the ground that the FEIR failed to consider the Project’s impact on a community’s ability to evacuate from a wildfire, but rejected the other contentions made by the petitioners.
On appeal, the First District Court of Appeal held that the CEQA Guidelines required the County to disclose the potentially substantial risk of human-caused wildfire in the Draft EIR, and that disclosure of such risks at a later time “came too late” because it prejudiced the CEQA process.
Moreover, the court held that the passing disclosure of increased wildfire risks in the FEIR errata was insufficient to comply with CEQA. According to the court, both the errata and FEIR failed to reasonably describe the additional risks posed by wildfire as compared to existing conditions. Notably, the court did not prescribe the appropriate manner of discussing the Project’s impacts, instead leaving the choice of methodologies for wildfire impact disclosure and mitigation to the County’s discretion. However, the court emphasized that the County cannot completely jettison its responsibility under CEQA to inform the public about wildfire risks by failing to disclose its analytic route, such as for example presenting industry standard modeling tools, methodologies or other explanation supporting its impact conclusion.
With respect to the FEIR’s discussion of the Project’s greenhouse gas emissions, the County determined that the carbon credit program was not a feasible mitigation measure for greenhouse gas emissions due to the limited availability of credits, adopted findings and a Statement of Overriding Considerations, but required the Project proponent to purchase offsets as practicable as a mitigation measure. The court affirmed the validity of this approach, holding that CEQA does not preclude a Lead Agency from considering a potentially beneficial measure that it deems too uncertain to be feasible.
The court also rejected petitioners’ claim that the County’s failure to quantify well drawdown for an off-site well violated CEQA. The court held that the FEIR adequately disclosed the impacts of the off-site well that was planned as a contingency measure for unanticipated shortfalls of water. Because the well would only be used in extreme circumstances that would not arise even under the County’s most conservative model of water supplies, the court held that CEQA did not require the County to go into further specificity in the FEIR with respect to the impacts of the well.
