The spate of large, extremely destructive wild fires in California has caused courts to pay more attention to the risk of wild fires when they review environmental impact reports for proposed developments in the state. Most recently, a superior court judge in San Diego County ruled that the Environmental Impact Report for the proposed Otay Ranch Development was inadequate because it failed to adequately disclose or analyze the projects’ potential wildfire risks and related impacts.
The court’s order
The proposed development is part of a 23,000-acre residential development, and is the largest single development in the county’s history. Several governmental groups and the California Attorney General’s Office commenced a lawsuit asking that the court declare the environmental report to be inadequate. The plaintiffs alleged that the draft environmental report failed to properly account for wildfire impacts and green house gas impacts at the proposed site, which is located “in a very high fire-hazard severity zone.” The plaintiffs argued that the state is on track for yet another record-breaking, climate-fueled wildfire season” and that the environmental report must adequately examine and evaluate this risk.
What happens now?
Based upon this ruling, the court will now issue an order vacating all of the land use approvals that were based upon the conclusions in the first environmental report. The developer and the county are now faced with painful choices. The developer can abandon the project, or the county can decide to revoke all of its permits approving the development. In essence, it’s back to square one for the project. In order to proceed, both the developer and the county will be required to prepare a new environmental impact report that includes the missing fire data and evaluations. Either party can, of course, appeal the superior court’s decision to the state court of appeals. An adverse decision by the court of appeals can then be taken to the state’s supreme court.
Environmental impact reports
The cost of preparing an environmental impact report that fails to consider all relevant environmental hazards is of course immense. Any party consideration a project whose size will require the preparation of an Environmental Impact Report may wish to consult an experienced environmental attorney for advice before beginning the report. A knowledgeable environmental attorney can provide useful advice on the subjects that must be included in the report and on the scope of the research required to properly analyze these topics.