Residents’ Comments About Existing Fire Hazards Do Not Constitute Substantial Evidence of a New Project’s Impacts Under CEQA

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In June 2021, the Third District Court of Appeal upheld the County of El Dorado’s (“County”) mitigated negative declaration (“MND”) for a bridge construction project against complaints that the project’s construction would block an evacuation route for residents in the event of a wildfire. In its holding in Newtown Preservation Society v. County of El Dorado, the Court reaffirmed precedent finding that the key question for hazards, such as wildfire, in the context of CEQA is not the impact that the existing environment presents to the project, but whether the Project would exacerbate hazard risks.

The project at issue was a replacement of the existing Newtown Road Bridge, located near Placerville, California. The Petitioners argued that the County was required to prepare an environmental impact report (“EIR”) rather than an MND because the project may have significant impacts on fire evacuation routes while the bridge is under construction. Both the trial court and the court of appeal rejected these arguments and upheld the County’s MND.

The MND found that although the project would impair or interfere with emergency evacuation plans and could expose residents to risks of loss or injury in the event of a wildfire, these impacts would be less than significant. The MND listed several potential alternate evacuation routes that residents could use if the bridge was closed to traffic during construction, including a temporary evacuation route that could be installed. The County also committed to coordinating with emergency response agencies and the local fire protection district in order to establish evacuation routes in the event of fire or other emergencies. The County concluded that the project would no expose people or structure to new or increased risks of loss in a wildfire.

The Petitioners argued that there was substantial evidence of a fair argument that the project would have significant impacts on the environment, based on comments made on the MND by residents in the vicinity of the Newton Road Bridge expressing concerns that the construction would impede evacuations in the event of a wildfire. The Court found that these concerns did not amount to substantial evidence that the project would create new or increased fire risks to residents. First, the Court found that the Petitioners had improperly framed the standard of review. The question is whether the project will have significant impacts on the environment; effects the environment has on the project are outside of the scope of CEQA.

Second, the Court found that the residents’ comments were not substantial evidence, as they were mere speculation of non-experts and were not substantiated. While one commenter was a retired firefighter, the Court found that there was no evidence in the record that showed that this individual had expertise in determining appropriate evacuation routes. Furthermore, the County had responded to these concerns through consulting with local emergency response agencies, which had endorsed the alternative evacuation options outlined in the MND. Ultimately, the comments were insufficient to establish that the project would exacerbate existing environmental hazards. The Court distinguished these comments from other cases in which lay (non-expert) testimony has been found to be substantial evidence, pointing out that these comments lacked factual foundation and did not cite specific facts to attack the emergency response agencies’ opinions. Thus, the comments were not specific enough to constitute substantial evidence of a fair argument that the project would have a significant effect on the environment, and the MND was adequate under CEQA.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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