In People ex rel. Bonta v. County of Lake (2024) 105 Cal.App.5th 1222, the First District Court of Appeal held that the Final EIR (“FEIR”) and associated errata for a proposed mixed-use development project, located in a rural part of Lake County, failed to adequately assess the increased risk of human-caused wildfires the project created. The Court also found that the FEIR’s commitment to carbon credit mitigation, which was found infeasible in the FEIR, did not violate CEQA, and that the FEIR’s analysis of impacts for a potential offsite well was adequate.

Background

The project concerned a luxury resort composed of residential estate villas, hotel units, and related infrastructure (“Project”) proposed by Real Party in Interest Lotusland Investment Holdings, Inc. (“Lotusland”), set on 16,000 acres of unincorporated and largely undeveloped land in Lake County. Petitioners, Center for Biological Diversity and California Native Plant Society (collectively, “Petitioners”), as well as the Attorney General, submitted comment letters in response to the FEIR for the Project. The letters challenged, among other things, the adequacy of disclosure and mitigation measures pertaining to Project impacts, including the exacerbation of wildfire risk, a decrease in groundwater supply, and the generation of greenhouse gases. In particular, Petitioners criticized the FEIR for failing to address how the influx of new residents would increase the potential for wildfire ignitions as compared to existing conditions at the site.  

In response, Lake County (“County”) published an errata to the FEIR and a supplemental report addressing these comments. While the errata acknowledged that development of the site would introduce additional wildfire risks by increasing vehicular traffic and inhabitants, it maintained its previous determination that the FEIR’s Wildfire Plan would ensure that wildfire risks of the Project were limited—notably only analyzing the Project’s current wildfire risk. The Attorney General asserted that the errata merely provided a cursory overview of the risk factors the Project created and failed to provide a Project-specific analysis of the increased threat. Despite Petitioners’ requests to further revise the FEIR and recirculate it for public review, the County certified the FEIR and approved the Project. Petitioners and the Attorney General filed writ petitions, alleging the FEIR failed to properly analyze, disclose, or mitigate the Project’s wildfire and community safety impacts, greenhouse gas emissions, offsite water use, and project alternatives. The trial court ruled that the FEIR violated CEQA by failing to consider the Project’s impacts on the community’s ability to evacuate from wildfire but rejected all of Petitioners’ and the Attorney General’s other assertions. Petitioners timely appealed, after which point the Attorney General reached a settlement with Lotusland and voluntarily dismissed their appeal.

Court of Appeal

Wildfire Risks

As a preliminary matter, the Court determined that the County’s errata only provided a cursory review of the increased wildfire risks of the Project and did not address Petitioners’ concerns that the project-level analysis of these risks was inadequate. The errata was also too late, as the Court determined that an agency cannot remedy an EIR’s deficiencies through post-EIR analysis. Although the County countered that there was no need to discuss the Project impacts on wildfire risk because the Wildfire Plan’s design features were a central part of the Project, the Court found that the lack of this information “plainly” obstructed required disclosure of the Project’s environmental impacts. While the Court refused to prescribe the appropriate manner of discussing these potentially significant impacts, it held that an FEIR must sufficiently inform the public of the risk of increased human-caused wildfires as a result of the Project by assessing the increased risk as compared to the existing baseline conditions on a property.

Despite finding that the errata could not overcome the FEIR’s deficiencies, the Court comprehensively reviewed the errata’s failures. The errata pointed generally to human-caused ignitions and a study that concluded “increased fire education, a decline in smoking, and modern vehicles” had contributed to the reduction of human-caused wildfires. The Court noted that this unrelated scientific study and summary of modern wildfire reduction factors did not inform the public of how the County concluded that the Wildfire Plan eliminated those risks. And the errata in “no way” explained the extent to which “bringing in over 4,000 new residents” to the largely undeveloped Project altered the community’s risk levels. Such a “bare” discussion, the Court noted, prevented the public and decision makers from adequately evaluating the merits of the associated Wildfire Plan.

Moreover, because the errata did not revise the Wildfire Plan, its restatement of the FEIR’s conclusion that the Wildfire Plan would prevent the exacerbation of current wildfire risks lacked support. The Court observed that, while the Wildfire Plan comprehensively analyzed the Project site’s current wildfire risk, it did not “expound on the anthropogenic risks that the errata admits development at the project site” would introduce. Accordingly, the Project’s failure to separately identify and analyze the significant impacts of the fire risk it would create before proposing mitigation measures violated CEQA.

GHG Credits

The FEIR concluded that the Project’s impact due to greenhouse gas (“GHG”) emissions would be significant even after adopting feasible mitigation measures. Despite the County’s determination in response to comments that the purchase of carbon offsets for the Project would be infeasible, the County added, through the errata, a condition to the FEIR’s Mitigation Monitoring and Reporting Plan that Lotusland purchase these credits anyway. While Petitioners did not challenge the infeasibility finding, they challenged as ineffective the FEIR’s inclusion of a carbon credit program to address GHG emissions. Petitioners argued that the carbon credit program needed to adhere to CEQA’s requirements for feasible mitigation measures to be included in the FEIR.

The Court noted that Petitioners cited no authority for the contention that CEQA bars consideration of potentially beneficial measures that an agency has determined to be infeasible, and the Court declined to find that the carbon credit program needed to meet CEQA’s standard for feasible mitigation measures simply because it was included in the FEIR. The Court noted that Petitioners did not allege that the program would impose adverse effects, and they provided no support for their assertion that CEQA bars consideration of “potentially beneficial measures that agencies deem too uncertain to be feasible.” Accordingly, the Court concluded that even if the program’s inclusion in the FEIR violated CEQA, there was no prejudicial error. Moreover, the program was not relied on. Because Petitioners presented no evidence concerning any adverse effects of the program and the Court declined to find that CEQA bars consideration of potentially beneficial, yet infeasible, measures, Petitioners’ challenge on this point was meritless.

Offsite Well Impacts

Petitioners also argued that the FEIR should have attempted to quantify the amount of groundwater the Project would draw from the offsite well. The FEIR identified that the well “may be developed” to provide a supplemental non-potable water supply and only vaguely defined the aquifer it would be drawn from. However, the County did evaluate the potential well’s production capacity and use of the corresponding groundwater basin. The Court therefore found the FEIR’s limited discussion of potential uses for an offsite well adequate. Because the use and extent of the water drawn from the offsite well was uncertain, the FEIR was “prepared with a sufficient degree of analysis and specificity” regarding the amount of water the offsite well would draw if it was developed and did not need to quantify specific amounts.

Key Point

Going forward, projects in undeveloped areas should be sure to evaluate a project’s potential for exacerbating human-caused wildfire risks. According to the Court, such an assessment requires an EIR to establish a baseline for the likelihood of wildfire ignition and compare it to the increased risk once the project is completed. Such an assessment may be difficult, however, because this is a nascent field and no established model currently exists for such an assessment.