In California counties where wildfires tear through thousands of acres of land each year, it's time for developers and municipalities to sharpen their analysis of fire risks and fire mitigation plans in their environmental documents during the project approval process. That's at least the message the Court of Appeal, First District conveyed in the published portion of its opinion in People v. County of Lake (Oct. 23, 2024, No. A165677) ___Cal.App.5th___ [2024 Cal. App. LEXIS 667] ("Bonta v. Lake"). 

Bonta v. Lake concerned, in part, whether a Final Environmental Impact Report ("FEIR") properly analyzed or mitigated a proposed luxury resort's ("Project") impacts on evacuation routes and wildfire risk. The Project consisted 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.   

Petitioners Center for Biological Diversity and California Native Plant Society (collectively "Petitioners") submitted public comments to Respondents County of Lake and the Lake County Board of Supervisors (collectively, the "County") challenging the adequacy of the FEIR to address the Project's impact on exacerbating wildfire risks. Petitioners stated that the FEIR failed to disclose "the Project's potential to increase wildfire ignitions as compared to existing conditions on the Project site" and "how adding new residents will affect the potential for wildfires to start." 

Rather than addressing Petitioners' comments in a revised FEIR and recirculating it, the County published an errata to the FEIR and a supplemental report. The errata acknowledged that the Project would "introduce additional wildfire risk factors compared to existing conditions," including an increase in "the risk of wildfire due to human-caused ignitions." And, the errata stated that an unrevised "Wildfire Plan" was “a component of the Proposed Project.” One week later, the County certified the FEIR. Petitioners subsequently filed a writ petition in Lake County Superior Court for violation of the California Environmental Quality Act (“CEQA”). California Attorney General Rob Bonta, on behalf of the People of the State of California, intervened on the side of Petitioners.   

The trial court ruled in favor of Petitioners, finding that the FEIR violated CEQA by failing to consider the Project's impact on the community's ability to evacuate from a wildfire. 

On appeal, the Court found that "the errata's belated mention of the project's potential to increase wildfire risks does not adequately disclose the increased risks relative to the baseline existing conditions," citing Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 392 ("Laurel Heights") for the proposition that an Environmental Impact Report (“EIR”) must inform the public of environmental risks. The Court also cited Laurel Heights for the proposition that an "EIR must contain facts and analysis, not just the agency's bare conclusions or opinions. [In short,] there must be a disclosure of the analytic route the agency traveled from evidence to action." (Internal citations and quotations omitted.) 

Because the County's FEIR did not contain the facts and analysis in the errata and supplemental report, the Court found that they "may not be considered when evaluating the sufficiency of the FEIR." 

But even if the facts and analysis were in the FEIR, the Court found that they were "insufficient to comply with CEQA." Although the errata identified several sources of "human-caused ignitions," such as "arson, debris-burning, vehicle sparks, and discarding of cigarettes," 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," citing CEQA Guidelines, § 15144. What the County lacked was an explanation of "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." To make its point, the Court laid out a few non-exclusive questions that could have directed a proper analysis: 

[G]iven 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? 

[H]ow 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?

Rather than diving into those details, or other details that the County may have found relevant to a CEQA-compliant analysis, the County outlined in its errata a handful of factors that might exacerbate wildfire risks "in a single paragraph." The Court was not impressed. Nor was it impressed with the County's attempt to bootstrap the "Wildfire Plan" into the FEIR with a "single sentence" in the errata that asserted, without analysis, the Wildfire Plan's requirement of fire breaks will "reduce the risk of wildfire ignition from sparks or discarded cigarettes along project roadways." 

In the Court's view, this was too little, too late. It ordered that the trial court vacate the County's certification of the FEIR and approval of the Project. 

Bonta v. Lake County is instructive because it gives a road map for a CEQA-compliant analysis of a project's potential to exacerbate wildfire risks. Because wildfires in California are numerous year after year, we should expect that courts will continue to focus on whether an EIR's wildfire risk analysis is legally sufficient. In Lake County, there were 336 fires that burned a total of 19,191 acres between 2019 and 2023. (See fire.ca.gov.) California experienced 5,875 wildfires burning 446,667 acres of land in 2023. So far in 2024, there have been 7,026 wildfires burning 1,013,960 acres of land across the state. (See fire.ca.gov.) A careful, fact-based comparison of present conditions versus project conditions is necessary to thoroughly analyze wildfire risk under CEQA. This analysis must chart "the analytic route the agency traveled from evidence to action." This action, hopefully, will lead to projects being better equipped for wildfires and communities being better informed.