The Politics of Fire: Attempting an End Run

The following article is a serialized story of the decade-long effort to convince intransigent government officials in San Diego County that science matters and that the region’s native chaparral ecosystem has value. In the name of fire protection, the county attempted to establish a plan that could have allowed it to clear tens of thousands of acres of native habitat without proper oversight as required by the California Environmental Quality Act (CEQA). The story is timely because of the current politicization of science in the United States and the impact that process can have on public policy. The story also provides valuable lessons to activists dealing with the enforcement of environmental law.

This is part VII of VII

Click here for Part I of The Politics of Fire: The Struggle Between Science and Ideology in San Diego County

Click here for Part II of The Politics of Fire: Academic Nonsense

Click here for Part III of The Politics of Fire: Huge Fires are Natural

Click here for Part IV of The Politics of Fire: Denying the Science

Click here for Part V of The Politics of Fire: It Gets Worse

Click here for Part VI of The Politics of Fire: This is Not it

Click here for Part VII of The Politics of Fire: Attempting an End Run

Part VII: Attempting an End Run

By the time the final Fire Management Report reached the San Diego Board of Supervisors on March 25, 2009, the scientific and conservation communities had succeeded in convincing the county to correct most of the remaining scientific errors. Overt references to creating mixed-aged mosaics across the landscape had been removed. The recognition that vegetation management was only part of the solution was acknowledged.

However, one major problem remained. The report maintained the recommendation that the county pursue legislative changes to exempt “controlled burns” from environmental review under the California Environmental Quality Act (CEQA). This, despite the fact that Oberbauer and several supervisors insisted, as Supervisor Jacob stated at the March 25 board meeting, that staff would “conduct the appropriate environmental, CEQA review for any new, proposed projects which would implement actions identified in the Vegetation Management Report.”

On April 22, 2009, the county acted in the manner many had feared. With its very first, post-report vegetation treatment project, the county tried to avoid the protective environmental regulations within CEQA by claiming an “emergency exemption.” The project was to be a $7 million effort “to remove dead, dying and diseased trees and thin hazardous brush” in the backcountry that the county claimed constituted an “emergency” that needed to be dealt with immediately.

After public outrage over the attempt to avoid environmental oversight and a thorough comment letter from Anne Fege, county staff pulled the proposal from the agenda. However, the relief was short-lived.

On May 13, the county returned with a modified project that was limited to tree removal, but still contained the “emergency exemption.” The board passed the proposal unanimously.

If the county was successful in avoiding state environmental laws by claiming an “emergency exemption” for this project, a precedent would be set that might encourage it and other local governments to claim that every fuel treatment project was exempt from proper environmental review. As a consequence, on June 10, 2009, the Chaparral Institute, with support from the California Native Plant Society, took the matter to court.

The Chaparral Institute’s opening court brief led with a statement referring to the county’s attempt to use a loophole in CEQA to avoid environmental review:

The wildfires are always raging out of control.

More than two years after the October 2007 wildfire, respondent County of San Diego claims wildfires are always raging out of control for purposes of CEQA review, and it can declare all projects designed to reduce the conditions which may contribute to the occurrence of wildfires exempt from CEQA under the emergency exemption. The claim has no merit.

On March 4, 2010, the court agreed with the Chaparral Institute and ruled against the county, indicating their project was not exempt from CEQA and ordered them to follow the law.

Despite the court order, the county continued to resist. On July 1, 2010, the county issued a “negative declaration” on the project. A negative declaration is a government’s way of avoiding a full environmental review because they have determined a project will have no “significant environmental impacts.” In this case, however, the county’s approach was contradictory because, by claiming an “emergency exemption” earlier, they had already acknowledged that there may in fact be significant environmental impacts, but those impacts didn’t matter due to the “emergency.”

Ironically, the very same day the county was issuing its “negative declaration,” County Deputy Chief Administrative Officer Chandra Waller and Oberbauer were at the California State Capitol lobbying to exempt all of the county’s future habitat clearance projects from CEQA. This was a threat to the basic foundations of California’s environmental protection laws. Staff members from the State Senate recognized this and made it clear to the county that such an approach was unacceptable.

In its July 23, 2010, comment letter on the county’s negative declaration determination, the Chaparral Institute reaffirmed its position that the project “may cause significant environmental impacts.” This was a clear signal that the Institute would go back to court if the county failed to conduct a full environmental review through an Environmental Impact Report (EIR) as required by law.

On November 8, 2010, the county relented and finally issued a notice of intent to produce an EIR. On February 29, 2012, the board voted to approve the completed EIR for their $7 million tree removal project.

What of the Big Plan?

During post-trial settlement negotiations with the Chaparral Institute in 2010, Deputy County Chief Waller indicated that the county was in the beginning stages of initiating a full EIR on the entire countywide vegetation management plan as outlined in the Vegetation Management Report approved in 2009. The effort would be monumental: burning, masticating, and spraying more than 300 square miles of backcountry habitat over a five-year period.

The county issued an invitation for consultants to submit their qualifications by September 1, 2010 to prepare the EIR. Reportedly, two consulting firms were short-listed. However, the procurement process for the EIR was terminated shortly thereafter. Thus, the countywide habitat clearance plan died a quiet death. According to Herman Reddick from the county’s public safety office, the official reason for the plan’s cancellation was “budget constraints.”

Thomas Oberbauer, who led the plan’s development, retired December, 2010. The members of the county’s Board of Supervisors and Planning Commission have all remained the same.

Cited references are available here:

http://www.californiachaparral.org/images/References_for_Politics_of_Fire.pdf

All relevant documents can be found here:

http://www.californiachaparral.org/dsdcountyslashburn.html

This article is the seventh and final part in The Politics of Fire series.

You can find the rest of the series at the following links: