“We didn’t start the fire….”

-Billy Joel

Wildfires are an unfortunate reality of life in California and have become of increasing concern over the past several years. Eight of the ten largest wildfires in the state since 1932 have occurred in the last decade (five of which took place in 2020 alone).

Thus, it is no surprise that wildfire-related impacts have become an increasing focus of CEQA analysis and litigation. Recent cases such as League to Save Lake Tahoe Mountain Area Preservation Foundation v. County of Placer (2022) 75 Cal.App.5th 63 (discussed on the blog here: https://www.ceqadevelopments.com/2022/02/23/third-district-addresses-significant-ceqa-issues-in-mixed-decision-on-placer-countys-eir-for-specific-plan-rezoning-allowing-development-of-martis-valley-timberlands/), Save the El Dorado Canal v. El Dorado Irrigation District (2022) 75 Cal.App.5th 239 (discussed on the blog here: https://www.ceqadevelopments.com/2022/03/01/third-district-rejects-ceqa-challenges-to-el-dorado-irrigation-district-ditch-piping-project-holds-eirs-project-description-and-analysis-of-potential-hydrology-biological-resources-and-wil/), and Newtown Preservation Society v. County of El Dorado (2021) 65 Cal.App.5th 771 (discussed on the blog here: https://www.ceqadevelopments.com/2021/06/21/flunking-ceqas-fair-argument-test-third-district-affirms-judgment-upholding-mnd-for-el-dorado-county-bridge-replacement-project-rejects-arguments-based-on-alleged-signifi/), and OPR’s August 2022 “Fire Hazard Planning Technical Advisory” help illustrate this trend.

Not to be outdone by other agencies, last month the Attorney General’s office (“AG”) released a document entitled “Best Practices for Analyzing and Mitigating Wildfire Impacts of Development Projects Under the California Environmental Quality Act” (available at https://oag.ca.gov/system/files/attachments/press-docs/2022.10.10%20-%20Wildfire%20Guidance.pdf). In the words of the document itself, “This guidance is designed to help lead agencies comply with the California Environmental Quality Act, Public Resources Code, section 21000 et seq. (CEQA), when considering whether to approve projects in wildfire-prone areas.” (Footnote omitted.)

This is an interesting development for several reasons. Neither CEQA’s statutory language nor the Guidelines charge the AG with implementing CEQA through the issuance of guidelines, thresholds, or advisories; indeed, as a not-infrequent intervenor in pending CEQA litigation, it seems somewhat unusual for the AG to proffer its own legal guidance on issues it is currently litigating as a partisan advocate. The AG’s office freely acknowledges that the basis of the document is the AG’s experience as a litigant in CEQA cases, while also conceding – as it obviously must – that the document has no independent legal effect:

This document does not impose additional requirements on local governments or alter any applicable laws or regulations. Rather, it is intended to provide guidance on some of the issues, alternatives, and mitigation measures that should be considered during the environmental review process. This guidance is based on the Office of the Attorney General’s experience reviewing, commenting on, and litigating CEQA documents for projects in high wildfire prone areas, and is intended to assist lead agencies with their planning and approval of future projects.

(At p. 2.)

The document is also notable for setting up wildfire impacts as a basis to limit residential development in areas that under existing conditions are already prone to wildfires (which most Californians will know is an increasing percentage of the state), and because it makes a number of broad assertions that are factually suspect, legally suspect, or both. For example, the AG broadly asserts in highly abstract fashion: “Put simply, bringing more people into or near flammable wildlands leads to more frequent, intense, destructive, costly, and dangerous wildfires.” (At p. 4, footnote omitted.) It asserts “Section IX(g) of the [CEQA Guidelines, Appendix G] checklist broadly directs lead agencies to consider whether a project will “expose people or structures, either directly or indirectly, to a significant risk of loss, injury or death involving wildland fires”” (At p. 7) – a rather unnuanced statement that is seemingly oblivious to the California Supreme Court’s holding in California Building Industry Association v. Bay Area Air Quality Management District (2015) 62 Cal.4th 369 that agencies are generally “not required to analyze the impact of existing environmental conditions on a project’s future users or residents” unless “a proposed project risks exacerbating those environmental hazards or conditions that already exist[.]” (Emph. added.) The AG’s predisposition against even the most thoughtful and intelligently designed development projects in “fire country” is further evinced with statements such as: “Some EIRs have concluded that the conversion of some wildland vegetation into paved development reduces or does not increase wildfire risk. This conclusion is contrary to existing evidence and the well-accepted understanding that the fundamental driver of increased wildfire risk is the introduction of people into a flammable landscape.” (At p. 9, footnote omitted.) While this “one-size-fits-all” pronouncement—which appears to ignore or discount the role of vegetative fuel in wildfire intensity and spread—is certainly consistent with the Legislature’s policy of encouraging infill developments, it cannot claim blanket evidentiary support in all circumstances; and even as a policy statement it fails to acknowledge that infill projects can create their own problems (noise, traffic, public services impacts, etc.) and are also more prone to NIMBY challenges. (See p. 12 [document encourages mitigation “relying on higher density infill developments as much as possible”].)

More substantively, the document advocates for an exhaustive (and thus expensive and complex) level of analysis, which will, of course, open up ever-more targets and avenues of CEQA challenges and lawsuits by dedicated project opponents:

To understand how a project may exacerbate the risk of wildfire, an EIR should qualitatively assess these variables and also use fire modeling and other spatial and statistical analyses to quantify the risks to the extent feasible. Experts should utilize fire models to account for various siting and design elements, as well as a variety of different fire scenarios. The modeling should include scenarios for fires that start in, near, and far from the project site, as well as extreme weather conditions that exacerbate fire spread.

(At p. 9.) Setting aside the discretion CEQA grants lead agencies to choose their own methodologies (whether qualitative, quantitative, or both) for studying project impacts, subject to deferential judicial review for substantial evidence support, the AG’s “best practices/wish list” statements conflict with the actual law in other respects, made evident by the below language quoted with approval by the Court of Appeal in the League to Save Lake Tahoe case:

The comment suggests that the analysis should assess the rate at which fires would advance, considering such variables as wind speeds, direction, humidity and fuel moisture content considerations, topography, time of day, and fuel loadings (including brush). Because of the number of variables involved in the behavior of any given fire event, the number of scenarios that could be defined would be so numerous that selection of any one or several would be speculative and not necessarily representative. The more tangible metric, and a reasonable indication of the effect of the project on emergency evacuation, is the time required for evacuation of the project itself, and the effect of the project on overall evacuation times, as described in the EIR.

(75 Cal.App.5th at 139.)

The difference between these two positions may stem from the fact that the analysis in League to Save Lake Tahoe was firmly rooted in the first threshold of significance suggested in Section XX of Appendix G, which asks whether a project would “[s]ubstantially impair an adopted emergency response plan or emergency evacuation,” and which thus may necessitate an evaluation of evacuation-related impacts. The AG’s guidance, however, is focused on the more general question of whether a project may cause or exacerbate wildfire risks, seemingly burnished with the gloss that all projects proposed in wildfire prone areas, of course, do so virtually per se. The AG tacitly acknowledges this bias when it writes, “Lead agencies are encouraged to develop thresholds of significance that either identify an increase in wildfire risk as a significant impact or determine, based on substantial evidence, that some increase in the risk of wildfires is not considered a significant impact.” (At p. 9.)

What the AG apparently cannot conceive of is that some projects proposed in “fire country” – for example, those thoughtfully designed to include defensible open space, firebreaks, vegetation management and fuel reduction requirements, fire-resistant building materials, on-site fire fighting personnel and equipment, ample emergency response access and evacuation routes, advance warning systems, ample sprinklers and hydrants, undergrounded utilities, shelter-in-place facilities, state-of-the-art fire protection plans, etc. – might actually constitute an improvement to existing undeveloped conditions creating high fire risk, despite the introduction of more humans. And while the AG’s guidance document does address evacuation and emergency access (see pp. 10-12), it does so in such a way as to again suggest that any increase in evacuation times ought to be considered a significant impact. “Local jurisdictions should consider whether any increase in evacuation times for the local community would be a significant impact.” (At p. 12, emphasis added.) The fallacy in this suggestion is also exposed by the League to Save Lake Tahoe court’s cogent and commonsense observation that while any project adding people to an area would increase evacuation time, such “does not necessarily generate a safety risk.” (75 Cal.App.5th at pp. 135, 141 [holding substantial evidence supported EIR’s conclusion that development project increasing modeled evacuation times did not significantly impair implementation of or physically interfere with adopted emergency response or evacuation plan].)

As is probably apparent from the foregoing, the AG’s guidance is overall drafted in such a way to suggest that a project in or near (whatever “near” means in this context) a very high fire hazard severity zone will virtually always give rise to potentially significant wildfire-related effects. For instance, the AG writes, “First, introducing more people—via additional development—into a flammable landscape increases the likelihood of: (1) a wildfire igniting due to the increased presence of people; and (2) the ignition becoming a wildfire because of the placement of homes amongst the flammable vegetation.” (At p. 4.) The first of these statements is a pure tautology – “more people cause fires because more people cause fires.” And the second is another “one-size-fits-all” pronouncement, issued categorically without regard to a particular project’s relevant design features. This is emblematic of the document as a whole. Moreover, it also ties wildfire analysis to the equally fraught issue of water availability, which is itself a frequent subject of concern and attack. (At p. 9.)

The document’s final turn towards potential mitigation (pp. 12-14) is to some extent constructive, but also unhelpfully suggests that a project that incorporates design features thoroughly addressing fire hazards from its inception may ironically be more vulnerable to a CEQA challenge than one which begins with a bad and more dangerous design and relies on the CEQA process to analyze and impose modifications mitigating the risk. (At p. 12.) It also, in our view, ultimately seeks to place constraints on development that may be impractical, or that may render a project infeasible. Moreover, the foregoing analysis that suggests that any development in or near a wildfire-prone area will necessarily give rise to significant impacts may make decisionmaking bodies and courts reluctant to uphold a legally adequate CEQA document where project opponents will raise the likelihood that people will be killed as a result.

In conclusion, while all Californians are or ought to be concerned about wildfires in the state, such a concern does not obviate the exercise of common sense or supersede the problem of the ongoing housing crisis. The AG’s unprecedented decision to offer its own CEQA “guidance” in this area—comprised largely of positions it is taking in litigation in which it intervenes—is more likely to add complexity, delay, and expense to projects and their CEQA review, all to an uncertain benefit. Lead agencies and project developers will undoubtedly be coerced by the threat of AG legal action against them to develop additional thresholds of significance and to conduct additional complex and extensive studies modeling multiple speculative wildfire behavior and evacuation scenarios based on myriad assumptions and of dubious practical value. Perhaps this is just the way of the world when CEQA is commonly deployed as a weapon to try to achieve desired policy outcomes rightfully within the lead agency’s purview and discretion. But by failing to take a balanced approach that more fully recognizes the need for housing in the state, failing to recognize that project design features may substantially reduce existing wildfire risk, failing to recognize that new projects cannot be expected to offset risk from existing development, and failing to recognize that a total absence of wildfire risk is an unreasonable and unworkable standard, the AG’s guidance is likely to result in less, and more expensive, housing (and other) development in the state. One would hope that such an undesirable development would at least be based on an unbiased analysis of on-the-ground facts, and the application of actually applicable laws, rather than the AG’s policy preferences.