In a published opinion filed June 9, 2023, the First District Court of Appeal (Div. 3) reversed the trial court’s judgment granting a writ of mandate in consolidated CEQA actions and upheld the adequacy of the UC Regents’ EIR for vegetation removal actions planned to occur within about 800 acres of hilly, forested and fire-prone land on UC Berkeley’s Hill Campus. The Claremont Canyon Conservancy v. The Regents of the University of California/Hills Conservation Network v. Carol T. Christ (2023) ___ Cal.App.5th ___.
Key Project Description Issue, Background Information,
And The Trial Court’s Decision
The primary CEQA issue in contention, and the only one reached by the trial court, was the adequacy of the EIR’s project description, which the trial court found “uncertain and ambiguous” as describing “vague conceptual criteria” for the vegetation removal while lacking “concrete information on how the ‘criteria will be implemented.’”
As brief background, UC’s Hill Campus spans about 800 acres in the East Bay Hills bordering private residences, the Lawrence Berkeley National Laboratory, and the Claremont Canyon Regional Preserve. Historically plagued by wildfires, much of the land is heavily forested, located in a “Very High Fire Hazard Severity Zone,” and has been subject to periodic vegetation removal by UC to reduce wildfire risk for approximately a century. The Regents used a 2019 Cal Fire grant (received two years after the Grizzly fire burned nearly two dozen acres of the Hill Campus) to help it retain “an expert wildland fire manager/fire ecologist to develop and prepare a Wildland Vegetative Fuel Management Plan” (the “plan”) which proposed “vegetation removal projects on 121 acres dominated by conifer and eucalyptus stands.” While greater detail can be found in the opinion, the plan sought, inter alia, to reduce fire risk by managing the amount and continuity of vegetation that increases wildland fire hazards, and reducing highly flammable invasive plant species while promoting the growth of fire-resistant native plant species. In relevant part, the plan proposed “one fuel break project and three fire hazard reduction projects.” The Regents prepared and circulated a draft EIR containing programmatic and project-level review and certified the final EIR, which attached the plan, in early 2021.
Plaintiffs Claremont and Hills filed writ petitions challenging the adequacy of the EIR’s descriptions of the four projects and its environmental analysis. Hills argued the projects went too far and Claremont thought they didn’t go far enough. In any event, the trial court agreed with plaintiffs that the EIR’s challenged project descriptions were “not accurate, stable and finite” as required by CEQA. More specifically, the trial court found fault with the plan’s proposed “variable density thinning” as leaving such “broad” discretion to the implementing arborist “that it is not predictable how the criteria will be implemented.” It found support for its conclusion in the plaintiffs’ disagreement over whether the plan would result in too much or too little tree cutting, and also fund that the Regents were required and able to provide more informational detail regarding the actual results of applying the plan’s conceptual criteria, rendering the project description “uncertain and ambiguous” and precluding informed decisionmaking and public participation.
The Court of Appeal’s Opinion
CEQA’s Project Description Requirements
The Court of Appeal prefaced its discussion with a statutory overview of relevant legal principles, focusing heavily on CEQA’s rules and requirements governing an EIR’s project description, including:
- The EIR’s project description must contain: (1) the project’s precise location and boundaries; (2) a statement of the project’s objectives and underlying purpose; (3) a general description of the project’s technical, economic, and environmental characteristics; and (4) a statement briefly describing the EIR’s intended uses. (Citing Tiburon Open Space Committee v. County of Marin (2022) 78 Cal.App.5th 700, 724, fn. 16, 738, and CEQA Guidelines, § 15124(a)-(d).)
- An “accurate, stable, and finite project description” “is the sine qua non of an informative and legally sufficient EIR.” (Citing id. at 738, Save Our Capitol! v. Department of General Services (2023) 87 Cal.App.5th 655, 673.)
- The project description shouldn’t supply extensive detail beyond that needed to evaluate the project’s environmental impacts, but should contain a sufficient degree of analysis to allow decisionmakers to make an informed decision intelligently considering environmental consequences; impact evaluation needn’t be exhaustive, and is reviewed in light of what is reasonably feasible, with courts looking not for perfection, but adequacy, completeness, and a good faith effort at full disclosure. (Citing Tiburon,at 738, 726; CEQA Guidelines, §§ 15124, 15151.)
- The lead agency has discretion to design its EIR and need not conduct every recommended test or analyze all variations of issues presented or every permutation of data. While some degree of forecasting is required, foreseeing the unforeseeable is not, and the degree of required specificity corresponds to the degree specificity of the underlying activity the EIR describes.
Standard of Review
The Court next noted that an EIR is presumed adequate, with the challengers bearing the burden to prove otherwise by establishing a prejudicial abuse of discretion, which may occur “if the failure to include relevant information precludes informed decisionmaking and informed public participation, thereby thwarting the statutory goals of the CEQA process.” (Citing, inter alia, South of Market Community Action Network v. City and County of San Francisco (2019) 33 Cal.App.5th 321, 329, 331.) Whether an EIR has sufficient detail to enable those who didn’t participate in its preparation to understand and consider meaningfully the issues raised by the project presents a mixed question of law and fact for the court, generally subject to de novo review; but courts will defer to an agency’s underlying factual determinations and choice of analytical methodologies where supported by substantial evidence, and may not set aside an EIR on the ground that an opposite conclusion on such matters would have been equally or more reasonable. (Citing Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 516; East Oakland Stadium Alliance v. City of Oakland (2023) 89 Cal.App.5th 1226, 1239.) Importantly, courts can’t interpret CEQA or the Guidelines so as to impose procedural or substantive requirements beyond those explicitly stated. (Citing Tiburon, at 724, fn. 16.)
The Project Descriptions Were Adequate
The opinion next set forth an additional and more detailed background discussion of the four challenged project descriptions, and concluded the trial court erred in finding they were not accurate, stable and finite. In developing the plan and project locations – shown in a detailed color-coded map reproduced in the body of the Court’s opinion – the Regents used fuel models to predict Hill Campus fire behavior based on factors including predicted flame length, rate of spread, crown fire activity, maximum spotting distance, and vegetation type in particular locations. Proposed fuel breaks – linear ridgeline strips of land up to 200 feet wide of treated or removed vegetation – were to be either “shaded” (i.e., with understory vegetation and certain trees removed) or “non-shaded” (i.e., with essentially all tree and shrub vegetation removed, leaving only thinned shrubs not exceeding two feet in height in groupings of specified area separated by specified minimum distance). Fuel break areas were described by specific location and vegetation removal methods.
Fire hazard reduction (FHR) vegetation removal projects focused on removal of high hazard vegetation and were proposed in specific canyon and ridge locations where the vegetation was primarily conifer and eucalyptus forest, with most of the acreage being eucalyptus. The EIR and plan identified numerous objective criteria for tree removal and retention in these areas, including specific objective, numerical vertical and horizontal spacing requirements for removal, pruning and mowing of vegetation, corresponding to potential to torch, produce embers, and spread fire.
Additionally, the University planned to employ “variable density thinning,” a principle used by arborists and professional foresters which considers site-specific conditions and creates gaps in canopy cover and tree density to reduce crown-to-crown fire movement. No clear cutting would occur in FHR areas, although certain hazardous vegetation – such as eucalyptus – would be targeted for removal or pruning. The EIR contained detailed descriptions of how variable density thinning would be implemented in the FHR project areas, including objective numerical vertical and horizontal distance separation standards for removal and retention, and removal mechanisms that would be used. However, the precise number of trees ultimately to be removed was not specified in the EIR, but would be determined by a certified arborist and registered professional forester, applying principles of variable density thinning and the plan’s objective criteria, after evaluation of changing vegetation growth and health conditions and weather conditions in the field.
The Court held the EIR’s project description contained the information required by CEQA Guidelines § 15124(a)-(d) and thus provided sufficient information to understand the projects’ environmental impacts. The EIR was not required to specify which trees would be removed and which would remain in the fuel break areas to have a stable project description, nor to specify the number of trees that would be removed in FHR project areas; such a degree of specificity was not involved in the underlying activity proposed, nor was it needed to evaluate the project’s environmental impacts. Courts should not interpret CEQA to impose procedural and substantive requirements not explicitly stated, and “[n]othing in the [CEQA] Guidelines requires the EIR to include a tree inventory in the [projects’] description[.]” (Citing, inter alia, Save Our Capitol!, at pp. 686-688.) Where a project, like the Regents’, “is subject to variable future conditions – for example, unusual rainy weather, tree growth, impact of pests and diseases, changing natural resources, etc. – the ‘project description must be sufficiently flexible to account for [those] conditions.’” (Citing and quoting from Buena Vista Water Storage Dist. v. Kern Water Bank Authority (2022) 76 Cal.App.5th 576, 580.) Contrary to Hills’ argument that conditions would not materially change during EIR preparation or project completion, substantial evidence supported the Regents’ conclusion that the “projects are subject to changing weather and topography conditions.” Per the Court: “So long as the EIR provides sufficient information to analyze environmental impacts – including the objective criteria being used – a project description for a large-scale vegetation removal that is subject to changing future conditions need not specify, on a highly detailed level, the number of trees removed.” (Citations and fn. omitted.)
After analyzing relevant principles from case law supporting its conclusion (see Citizens for a Sustainable Treasure Island v. City and County of San Francisco (2014) 227 Cal.App.4th 1036, passim), the Court stated:
Although Treasure Island concerned a development project where supplemental environmental review was anticipated, its reasoning nonetheless applies. Here, the EIR does not identify each tree that will be removed, but the projects’ basic characteristics are “accurate, stable, and finite,” and the EIR contains concrete criteria an arborist and a registered professional forester will use to determine which vegetation should be removed in the challenged project areas. [Citation.] As in Treasure Island, the Regents endeavored “to provide meaningful information” about the projects “while providing for flexibility needed to respond to changing conditions” that may affect the precise number of trees that will be removed in the project areas. [citation.] Under Treasure Island, the absence of a tree inventory in the FHR project descriptions does not violate CEQA.”
(Slip Opn., at p. 20.)
The Court went on to reject Hills’ argument that because the details of the projects here were less theoretical than those of the development project in Treasure Island, that case was inapposite and an arborist here could have feasibly walked the project sites, applied the tree removal criteria, and inventoried and mapped tree and canopy removals. Substantial evidence amply supported the Regents’ contrary conclusion that due to the project sites’ steep rugged topography, the high cost, and changing natural conditions, preparation of a tree inventory in connection with the EIR was not reasonably feasible. (See CEQA Guidelines, §§ 15151, 15364.) In sum, the EIR was adequate, complete, reflected a good faith effort at full disclosure, and included “sufficient detail to enable the public to understand the environmental impacts associated with the Regents’ plan to remove vegetation in specific locations on the Hill Campus to reduce wildfire risk.”
The EIR’s Impacts Analysis Was Adequate
Addressing petitioners’ remaining challenges to the EIR’s impacts analysis at the parties’ urging and to promote judicial economy (see Pub. Resources Code, § 21005(c)), the Court had little trouble quickly disposing of them. Claremont’s criticisms of the University’s allegedly “outdated and invalid” fire behavior prediction model and chosen wind inputs failed because its cursory briefing failed to show the University’s choice of methodology was unsupported by substantial evidence. Claremont conceded its challenge to the alleged absence of a climate change discussion lacked merit. And Hills’ conclusory impacts arguments amounted to meritless rehashes of its project description claims that were unsupported by pertinent authority.
Conclusion and Implications
To much can’t be expected of an EIR, which will be judicially reviewed not for perfection, but in light of what is reasonably feasible, and the lead agency enjoys substantial discretion in designing its EIR and choosing its analytic methodologies and determining factual issues. CEQA petitioners sometimes ignore these key principles, as do some trial courts, as illustrated by the Court of Appeal’s decision in this case. The Court’s published opinion provides valuable legal- and common sense-guidance in rejecting arguments that an EIR’s project description for a large-scale vegetation removal project to reduce wildfire risk cannot employ variable density thinning or must provide specific detail (such as number of trees removed or tree or plant inventories) that are beyond what is reasonably feasible, or even possible, to provide; it also serves as a helpful reminder that relevant environmental baseline conditions often fluctuate and are not stagnant, and that an EIR’s project description rules must allow for projects to have enough flexibility to address and respond to such changing conditions.