In Bonta v. County of Lake (2024) 105 Cal.App.5th 1222, the First District Court of Appeal ruled that the EIR for a proposed luxury resort in an unincorporated portion of Lake County was deficient for failing to provide a timely, project-specific disclosure of increased wildfire risk.
Background
Lotusland Investment Holdings proposed construction of a luxury resort on 16,000 acres in an unincorporated and undeveloped portion of Lake County. During the public comment period on the Draft EIR, commenters raised several issues, including the discussion of impacts related to wildfire, GHG emissions, and groundwater. The County included additional information in an “errata” after the Final EIR was released. In particular, the errata included a discussion of wildfire risks and additional mitigation for GHG impacts that required the developer to purchase offset credits if feasible.
Several petitioners filed lawsuits challenging the EIR, alleging (among other things) that its analysis of wildfire, GHG, and groundwater impacts was inadequate, and that the Couty improperly rejected feasible alternatives. The trial court ruled that the EIR violated CEQA by failing to consider the project’s impact on the community’s ability to evacuate from a wildfire but rejected the petitioners’ other contentions. The petitioners appealed.
The Court of Appeal’s Decision
Wildfire
First addressing the petitioners’ wildfire arguments, the court noted that CEQA requires public agencies to meaningfully consider and mitigate the potential adverse environmental impacts of their actions and communicate those potential impacts to the public via an EIR. To properly communicate those impacts to the public, the court explained, an EIR must include enough information to allow a person who is unfamiliar with the project to understand and meaningfully consider the potential impacts of the project.
Here, the court found that the EIR failed as an informational document. Specifically, neither the Draft or Final EIR addressed the increase in wildfire risk associated with the Project. Instead, the environmental documents discussed project features that would reduce the wildfire impacts of the Project to a less-than-significant level without explicitly outlining the Project’s wildfire impacts.
The court found that the 11th-hour errata to the FEIR did not remedy this informational deficiency for two reasons. First, the errata was substantively deficient because it only generically identified the sorts of human activities that increase wildfire risk in previously undeveloped areas. Instead, the County should have tailored the wildfire impact discussion to include project-specific analysis focused on the development of a luxury resort in undeveloped and unincorporated Lake County.
Second, the court found that the errata was published too late in the CEQA process to be effective as a tool to inform the public of the potential environmental impacts of the Project. The court found that the County’s process did not allow the public to meaningfully evaluate the potential environmental impacts of the project prior to the certification of the FEIR, which in this case occurred less than a week after the errata was published.
GHG Emissions
The Court of Appeal agreed with the petitioners’ argument that the carbon offset program, which was added to the final EIR via the errata, was legally infeasible by the County’s own rationale: the developer could not guarantee that quality carbon credits would be available to purchase when necessary. However, the court found no authority for the contention that CEQA bars considering potentially beneficial measures that agencies deem too uncertain to be feasible. Importantly, moreover, the environmental analysis did not rely on the offset program to eliminate the project’s impacts, and therefore, any error in including the carbon credit program in Final EIR was not prejudicial.
Groundwater
The petitioners argued that the EIR was legally deficient for failing to calculate the amount of water that the project would draw from an off-site well. The court rejected this argument, finding that the EIR need not speculate as to how much water would be drawn from the well because the EIR clearly stated that the off-site well would only be used in extreme circumstances, and that the project would ordinarily be fully supplied with on-site sources.