On October 23, 2024, the California First District Court of Appeal released its decision on People of the State of California Ex Rel. Rob Bonta, Attorney General, et al. v. County of Lake. The ruling addresses the environmental impact report (EIR) prepared for the Guenoc Valley Mixed-Use Planned Development Project, a luxury resort consisting of residential estate villas, hotel units, and related infrastructure on 16,000 acres in an unincorporated and largely undeveloped area of Lake County known as the Guenoc Valley Ranch.
The ruling includes important practitioner guidance related to the adequacy of wildfire risk analysis, use of a carbon credit program for greenhouse gas emissions mitigation, analysis of impacts of a potential future off-site groundwater well, and consideration of information provided after preparation of the Final EIR.
Section IV. FEIR Did Not Adequately Analyze Wildfire Risk
While the Superior Court ruling on the Final EIR addressed both wildfire evacuation and wildfire risk, the First District Court of Appeal (court) ruling narrows the focus to wildfire risk. One specific wildfire risk mechanism is addressed: the potential for the addition of people to the project area to also increase the potential for wildfire ignitions, which could risk exacerbating wildfire risk. The increased potential for ignitions resulting from project residents, employees, and visitors (e.g., careless disposal of a lit cigarette, hot catalytic converter on a parked car setting grass on fire, use of illegal fireworks) would then result in an environmental effect from increased wildfire risk to both the project site and surrounding lands.
For the project, the analysis of this impact mechanism was provided primarily in the Final EIR, errata to the Final EIR, and the County’s staff report released after the errata’s publication. These documents disclosed that increased potential for wildfire ignitions, resulting from the presence of the project and project residents, was a contributor to a potentially significant impact related to wildfire risk. However, this potentially significant impact was reduced to a less-than-significant level with the inclusion of project design features that reduced wildfire risk, as well as through implementation of other measures.
The court’s decision summarizes the impact analysis provided in these documents as follows;
…increased human habitation in a wildfire-urban interface increases the fire risk from “arson, children playing with fire, and debris-burning”; that increased vehicular traffic increases fire risk from “sparks, catalytic converters, and discarding of cigarettes”; and that “[t]he introduction of residences within the site would create a wildland-urban interface” that increases the general potential for human-ignited wildfires.
And the County’s staff report, released following the errata’s publication, states “[t]he Final EIR acknowledges that wildfire risk from development of the Proposed Project would be potentially significant” and “would result in impacts associated with increased risk of wildfire ignition.”
The court rejected the analysis of increased wildfire risk based on both the timing of its inclusion in the CEQA process (i.e., too late, without public review) and the content of the analysis. Much of the court’s decision relates to the provision of information on this issue in the Final EIR, errata to the Final EIR, and staff report after publication of the errata. In summary, the court found that this information directly supporting a new impact analysis should have been provided earlier in the CEQA process, as it warranted an opportunity for the public and interested parties to review and evaluate the potentially significant effect and submit comments.
The court found the impact analysis included in the Final EIR, errata, and staff report to also be lacking in detail and substantial evidence supporting its conclusions. The court noted that the EIR needs to discuss the impact of the project in sufficient detail to enable the public to discern the analytical route from evidence to action.
Specifically, the FEIR fails to reasonably describe the “additional wildfire risk factors as compared to existing conditions” that the project would “introduce” to the area. Instead, the errata points to several sources of “human-caused ignitions”—i.e., arson, debris-burning, vehicle sparks, and discarded cigarettes—and then cites a general study finding that “increased fire education, a decline in smoking, and modern vehicles … have reduced the impacts of anthropogenic causes of wildfire ignitions [other than by power lines] in recent times.” It concerns us that the County did not appear to “use its best efforts to find out and disclose all that it reasonably can about the project’s impact on these risk factors.” (Guidelines, § 15144.)
The errata in no way explains the extent to which 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. For example, given the general decline in human caused wildfires, how many such ignitions occur per 1,000 people in a wildland-urban interface, and how much has that rate reduced as wildfire safety and education has increased? And how many wildfires ignite per 1,000,000 miles driven by vehicles with and by vehicles without catalytic converters, and how has the mix of vehicles on public roads affected those statistics over time?
In footnote 8, the court expressed that the specific questions expressed above need not be answered, recognizing the lead agency’s discretion in deciding how to address potentially significant effects. The questions might be illustrative of the types of analysis that may suffice but are not the only approach. The standard expressed by the court in the note is that “an EIR cannot give a mere cursory mention” of potential significant impacts.
The court also took issue with the explanation of how a Wildfire Prevention Plan (included as part of the proposed project) reduces the identified potentially significant impact to a less-than-significant level. The effectiveness of the Wildfire Plan was not explained and remained unclear to the court.
Despite imposing no revisions to the Wildfire Plan, the errata affirms the FEIR’s original conclusion that the project “would not exacerbate the risk of wildfire from existing levels with implementation of the Wildfire Prevention Plan.” As the FEIR currently stands, there is no way to connect the dots between the “additional wildfire risk factors,” which the errata concedes exist, and the Wildfire Plan’s prevention strategies, which the errata does not update.
Again, we do not prescribe the appropriate manner of discussing the project’s potentially significant effects. We do not hold that the County must analyze the project’s environmental impacts on wildfire ignitions with and without the Wildfire Plan. The County retains discretion in choosing the methodologies employed for analyzing environmental impacts and mitigation measures. (Sierra Club, supra, 6 Cal.5th at pp. 516, 521.) But the FEIR must sufficiently discuss the project’s potential adverse effect of human-caused ignitions and analyze in some detail how the project’s design (or mitigation measures) alleviates such risks. It is not sufficient to cite a scientific study unrelated to the project and summarily state that “increased fire education, a decline in smoking, and modern vehicles … have reduced the impacts of anthropogenic causes of wildfire ignitions.” That may be true, but it does not inform the public how this evidence led the County to conclude that the Wildfire Plan eliminates those otherwise reduced—but still present—risks. (Laurel Heights, supra, 47 Cal.3d at p. 392.) Such a discussion is critical to the public’s understanding of the efficaciousness of the Wildfire Plan. Here, the County presents no industry standard modeling tools, no methodology or analysis for its conclusory findings, nor any other discussion of how the Wildfire Plan proposes to address the existing baseline conditions other than the Project design proposal itself. This is insufficient. Failure to separately identify and analyze the significant impacts of the fire risk to the Project area and its baseline existing conditions before proposing mitigation measures violates CEQA. (Lotus, supra, 223 Cal.App.4th at pp. 655–658.)
While in the decision the court provides examples of evidence that could be collected to support the Final EIR’s conclusions, and direction on methodologies for the impact analysis, it preserves the discretion of the lead agency (in this case, Lake County) to determine the specific methods to follow the court’s guidance (in a footnote).
Of course, we do not require that these specific questions be answered in the FEIR. (See Sierra Club, supra, 6 Cal.5th at p. 515 [“agency has considerable discretion to decide the manner of the discussion of potentially significant effects in an EIR”].) Nor must the risk be quantified if that is not possible. (Id., at p. 520 [“if it is not scientifically possible to do more than has already been done to connect air quality effects with potential human health impacts, the EIR itself must explain why, in a manner reasonably calculated to inform the public of the scope of what is and is not yet known about the Project’s impacts”].) But an EIR cannot give a mere cursory mention of potential significant impacts as the FEIR does here.
TAKE-HOME MESSAGES FOR THE CEQA PRACTITIONER
‣ Putting information into the record after the Final EIR. This decision appears to further limit the ability of lead agencies to provide information after publication of the Final EIR that may be beneficial in future litigation. Commenting on information provided by the applicant’s attorney prior to the Board of Supervisors hearing on project approval, the court states, “Neither the letter nor the testimony was made part of the Final EIR, and therefore, cannot be said to have remedied the Final EIR’s insufficiencies.” This statement leaves lead agencies and CEQA practitioners to wonder if there is any value in responding to public input provided after the Final EIR or at project hearings. Although the decision-makers may be a receptive audience to responses to “last-minute” comments, this case would lead one to believe that if information isn’t put into a CEQA document (e.g., Supplement to a Final EIR), with some opportunity for public review, the court will not consider it.
‣ The introduction of development or more people onto a site with wildfire risk is a reasonable impact mechanism that could lead to exacerbation of the wildfire risk, so it warrants analysis. The court found the Final EIR lacking for not addressing this impact more thoroughly, both validating it as an impact mechanism that CEQA documents should consider for its potential to exacerbate wildfire risk and suggesting the type of data that would support the impact evaluation. Now it is up to lead agencies and CEQA practitioners to again “figure it out.” How strong is the nexus between an increase in the human population and an increase in wildfire ignitions? Under what circumstances does the impact mechanism apply (e.g., greenfield projects, in the wildland-urban interface, within X feet/miles of high-fire-risk vegetation)? Sparks from vehicles and hot catalytic converters are potential sources of ignition, and the court identifies “how many wildfires ignite per 1,000,000 miles driven” as a potential metric for impact analysis. Therefore, would even an urban project that generates substantial VMT in the adjacent more rural county be subject to this impact mechanism?
‣ Clearly follow the standard CEQA steps. Whatever methods or data are used to conduct an analysis of potential increases in human-caused wildfire ignitions, follow the standard CEQA steps: (1) Describe the setting, (2) Identify a significance threshold, (3) Identify how the project alters the existing condition, (4) Make a determination of significance based on the threshold, (5) Provide mitigation for a significant impact, and (6) Identify whether the mitigation measure reduces the impact to a less-than-significant level and explain why. Easier said than done. How many agencies should be contacted to get data on current numbers of human-caused wildfire ignitions? Most human-caused wildfire ignitions are quickly extinguished and don’t make it on the news. What is a “less-than-significant” increase in risk of ignitions? How does an agency mitigate what is essentially careless human behavior by some subset of the project occupants that they may undertake both on and off the project site?
Section V. FEIR’s Inclusion of Carbon Credit Program Does Not Violate CEQA
The court upheld the County’s decision to include a condition to purchase carbon credits (14,865 carbon offset credits) to the Final EIR Mitigation Monitoring Program even though the Final EIR concluded that the project’s greenhouse gas emissions impact would remain significant even after adopting mitigation measures. The County determined that “there is a limited supply of verifiable, reliable, real carbon credits” and that there is no way to ensure that offset credits will be available when the project would need to purchase them.
The petitioners argued that the carbon credit program must meet CEQA’s standard for feasible mitigation measures and relied on Golden Door Properties, LLC v. County of San Diego (2020) 50 Cal.App.5th 467, 485 for the proposition that mitigation measures for GHG emissions must ensure that carbon credits are “real, additional, quantifiable, permanent, verifiable, and enforceable.”
The court determined that this argument was not pertinent to this circumstance and referred to determinations made by the County that the carbon credit program’s addition would not avert the project’s significant and unavoidable impact associated with GHG emissions.
Also, the petitioners did not argue that the carbon credit program would impose any adverse impacts. Therefore, the court concluded that to the extent the addition of the carbon credit program to the Final EIR did not comply with CEQA, it did not constitute prejudicial error because its inclusion “did not deprive the public and decision-makers of substantial relevant information about the project’s likely adverse impacts.”
TAKE-HOME MESSAGES FOR THE CEQA PRACTITIONER
‣ The addition of measures to address adverse impacts. The decision reaffirms that the inclusion of measures to address, but not fully mitigate, significant impacts is still proper. It also supports that the inclusion of additional measures to address significant impacts identified in an EIR does not trigger the need to recirculate the EIR when it does not deprive the public of a meaningful opportunity to comment upon a substantial adverse environmental effect of the project as provided under CEQA Guidelines Section 15088.5(a).
Section VII. FEIR Adequately Discloses Potential Impacts of Off-Site Well
The project’s proposed water system consisted of a potable water system supplied through on-site groundwater wells. The non-potable water system, consisting of a combination of surface water from on-site reservoirs, supplied recycled water and groundwater wells. These supplies were determined to be adequate to supply project water demands even during critically dry years. In addition to these sources, the Final EIR identifies an off-site well that “may be developed” to provide supplemental water supply “if required.” The petitioners argued that the Final EIR failed to disclose the project’s potential use of the off-site well and the associated quantification of the groundwater to be used.
The court rejected the claims that the Final EIR failed to adequately assess the impacts of an off-site well. The decision notes that the disclosure and analysis of the off-site well’s potential environmental impacts turns on the foreseeability of the well’s actual use and the source of groundwater it would use, consistent with CEQA Guidelines Sections 15144 (Forecasting), 15145 (Speculation), and 15146 (Degree of Specificity). The court noted that the Final EIR did evaluate the potential off-site well’s production and disclosed what is known of the underlying groundwater conditions. The Final EIR also noted that the use of this off-site well would be used only “if required.” The court concluded that the County relied on sufficient evidence in support of its finding that the ill-defined nature of the groundwater conditions precluded a conclusive evaluation of the off-site well’s impact. Given the unlikely use of the off-site well, the Final EIR’s evaluation of its impact is reasonable.
TAKE-HOME MESSAGES FOR THE CEQA PRACTITIONER
‣ The extent of impact analysis in an EIR is limited to project details. The decision supports the application of CEQA Guidelines Sections 15144 (Forecasting), 15145 (Speculation), and 15146 (Degree of Specificity) to appropriately limit the extent of an EIR’s impact analysis to details of the project and avoid speculation where project details are limited (e.g., programmatic environmental review for specific plan projects) and where technical information is not available (i.e., disclose what is known and not known).
