The First District Court of Appeal (Div. 4), in the partially published People of the State of California ex rel. Rob Bonta Attorney General v. County of Lake (2024) ___Cal.App.___ (A165677), held (amongst other things) that an EIR for a proposed luxury resort in a high-risk fire area did not adequately analyze wildfire risks because it failed to sufficiently inform the public of project-specific ignition sources.
Real Parties in Interest Lotusland Investment Holdings, Inc., proposed to develop a resort on a 16,000-acre portion of an undeveloped area known as the Guenoc Valley Ranch in unincorporated Lake County. Lake County published the Draft EIR (DEIR) in February 2020 for a 45-day public review period. Commenters noted the DEIR’s failure to adequately analyze wildfire risks. The County responded to comments and made changes to the document, then published the Final EIR (FEIR) in June 2020. Commenters, including the Attorney General, further maintained that the FEIR failed to resolve issues associated with wildfire risks. On July 15, 2020, the County published an Errata to the FEIR, and on July 21, 2020, it certified the FEIR without additional revisions or recirculation, despite the Attorney General’s continued criticism of wildfire risk analysis. The Center for Biological Diversity and other parties filed writ petitions claiming CEQA violations, the Attorney General intervened, and the cases were consolidated. The trial court ruled that the FEIR violates CEQA by “failing to consider the project’s impact on the community’s ability to evacuate from wildfire,” but rejected other claims. Petitioners appealed. The Attorney General also appealed but reached a settlement with Lotusland, and the appeal was dismissed.
CEQA requires an EIR to be an informational document, setting forth all significant environmental effects of a project and proposed mitigation measures, to ensure full disclosure of the “ ‘analytical route the…agency traveled from evidence to action.’ ” The court of appeal here found the EIR failed as an informational document because it did not sufficiently address the increased risk of wildfire from project-specific ignition sources that create or increase wildfire risks. This is an expansion of the scope of the trial court’s decision on wildfire impacts, which held only that impacts to community emergency evacuation routes must be better analyzed.
The FEIR Errata did not remedy these shortcomings. Per the court, the errata only “outlines – in a single paragraph – that increased human habitation in a wildlife-urban interface increased the [wild]fire risk.” The FEIR Errata briefly discussed general concerns like “ ‘arson, children playing with fire, and debris burning,’ ” and cited to a study finding that some modern behaviors, such as a “ ‘increased fire education’ ” and a “ ‘decline in smoking’ ” have “ ‘reduced the impacts of anthropogenic causes of wildfire ignition.’ ” It did not, however, specifically explain how “bringing in over 4,000 new residents to the largely undeveloped project site increases the risk of human-caused wildfire over the existing baseline risk.” The court held that this omission prevented the public and decisionmakers from evaluating whether a Wildfire Plan included as part of the project adequately reduces or eliminates these risks. Overall, this generalized analysis was deemed “insufficient to comply with CEQA.”
Moreover, the County’s additional wildfire risk analysis arrived too late. The FEIR Errata was published just a week prior to the FEIR’s certification, which, per the court, violated CEQA’s requirement that lead agencies “ ‘discuss a project’s potentially significant impacts in the draft EIR and final EIR,’ ” (quoting Guidelines, § 15120, subd. (c)). CEQA disallows post-EIR analysis to compensate for a lack of analysis in the EIR. The public must get an opportunity to review and evaluate new information. Additional substantive analysis was offered in a letter from Lotusland’s attorney a day before the Board of Supervisors hearing, as was testimony at the hearing, but neither made their way into the FEIR. Therefore, this analysis “cannot be said to have remedied the FEIR’s insufficiencies.”
As a result, the court could not even address whether the FEIR’s design features, including its Wildfire Plan, may alleviate the potential impacts of human-induced wildfire. It refused to opine on whether an analysis of the project with and without this Wildfire Plan was necessary – maintaining that the County “retains discretion in choosing methodologies employed for analyzing environmental impacts and mitigation measures.”
The court made additional published holdings not discussed in detail here related to the project’s GHG emissions (that the FEIR Errata’s requirement to purchase future available carbon credits from a CARB-approved registry to offset project GHG emissions did not violate CEQA, in part because the impact’s significant and unavoidable conclusion did not change) and the EIR’s disclosure of an offsite well (that the FEIR need not have further discussed an offsite undeveloped well that was not included in the portfolio of available project water supplies).
While awaiting this appellate decision, Lake County prepared and published on July 19, 2024, a Draft Partial Revised EIR for the project, with a 45-day public review and comment period (see https://www.lakecountyca.gov/1762/Guenoc-Valley-Mixed-Use-Planned-Developm). It is unknown if this partially revised document would have satisfied the trial court, but it is unlikely to satisfy the appellate court because it does not appear to contain substantive analysis of project-specific wildfire ignition risks.
This decision marks the first time that any court has required a project-specific wildfire ignition risk analysis be included in an EIR. While it remains to be seen how this ruling will impact future EIRs, CEQA practitioners should be cognizant of this potentially new EIR requirement for development projects in wildfire-prone areas. This decision also offers a cautionary tale against reliance on late, substantive EIR material that the public has not had adequate opportunity to review. It is commonplace for lead agencies to revise FEIRs after receiving public comment; CEQA certainly does not disallow such revisions. But, as explained by the First District Court of Appeal, there are limitations. Any agency wanting to substantively bolster impact analysis in FEIRs should seriously consider publishing the document for another round of public review, and probably for more than just one week. And, applicant-provided analysis, while perhaps useful for decisionmakers, is not a substitute for EIR revisions.
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