By admin 
Opponents of Proposition 45, which creates new rules under the California Environmental Quality Act for some building projects, are arguing the so far well-polling ballot measure would grease the skids for the construction of data centers, which poll very badly.
Read more Former Sacramento Kings trainer alleges pregnancy discrimination in lawsuit
The allegation comes as a large and growing coalition of environmental groups, joined by some labor unions and the California Democratic Party, mount a pitched campaign against what they call a corporate power grab clothed as an affordability measure.
“It is a way for data center giants, oil, gas and utility corporations to build what they want where they want,” Mabel Tsang, political director of the California Environmental Justice Alliance, said in a rally on the statehouse steps last week.
Those leading the campaign for Proposition 45, which is funded by construction and affordable housing groups, the California Chamber of Commerce, utility companies, and also a political action committee funded largely by wealthy tech executives, call the data center argument a red herring.
“Proposition 45 unequivocally does not include data centers,” Amelia Matier, a spokesperson for the campaign, said. “The opponents know that people are really unhappy with the status quo and the facts are just not on their side, so they’re pushing these fearmongering lies.”
A poll conducted this summer by the Public Policy Institute of California captures the importance of the data center question.
Reforming CEQA, which many credit for the often prohibitively high price of building housing and infrastructure projects around the state, is generally popular. Seventy-three percent of likely voters told the pollsters they’d vote yes on a proposal to modify environmental reviews for housing, transportation, health, water and clean energy projects, though PPIC noted the label and title Proposition 45 will carry on the ballot weren’t yet published.
Proposition 45’s opponents say the PPIC poll question was too vaguely worded and that their own polling shows the measure losing support as voters learn more about what it does.
That loss of support would certainly increase if voters believed Proposition 45 could open the door to data centers, which have become an environmental villain in California as they have nationwide.
An even higher majority of likely voters — 77% — told PPIC they oppose the construction of a data center in their area.
Data centers, and Americans’ wariness toward them, are increasingly shaping political debates around the country. New York, Pennsylvania and Texas have all taken steps to restrict data center construction. The governors of New York and of Texas, otherwise on opposite sides of the political spectrum, have both imposed momentary moratoriums on building them.
What does Prop 45 do/backers/opponents?
Its backers and architects say Proposition 45 will streamline CEQA review for certain building projects by imposing deadlines on agencies and courts to issue approvals or disapprovals. The proposition would put a 365 business-day clock on government agencies to approve or reject a project’s environmental impact report. And on the courts, it would impose a 270-day deadline to resolve any legal challenges brought by project opponents.
The measure also restricts what evidence California judges can review. Judges would be required to examine whether an agency’s project approval was supported by substantial evidence, but wouldn’t be able to take competing environmental studies drawn up by the opposition into account.
Development opponents will often commission their own studies if they believe an agency used flawed science to approve a project. Though its proponents say NIMBY groups have used courts to unjustly slow projects for years and drive up building costs, the groups rallying against Proposition 45 say its adoption would now tilt the legal scales too far in favor of developers over concerned community members.
Read more Elk Grove appoints mayor, councilmember to new terms in unopposed races
Local laws would still supersede the measure, so if a city or county wanted to ban or impose new restrictions on any type of infrastructure project, like, for example, battery storage facilities — which can be undesirable in some places and are included under the clean energy category, Proposition 45 wouldn’t interfere that with that ban.
Data centers or not?
The new rules would apply to eight categories of building projects — housing and public health developments (such as hospitals); clean energy; water infrastructure; schools including higher education facilities; public safety projects, including wildfire mitigation work like creating forest fuel breaks and conducting vegetation management; transportation, and broadband and digital access.
On the Yes campaign’s website, that last point is described as “fiber-optic and wireless broadband projects connecting underserved and rural communities.”
The definition in the measure itself is broader, defining the category as covering projects “to provide mass market retail service by wire service, wireless service, or radio to customers in this state.” The No campaign is arguing that language that opens the door to data center developers availing themselves of the streamlined CEQA system. Data center builders often represent their projects as essential to the successful reach and service of the internet, they’ve argued.
“Those facts point to coverage under the measure, or at the very least, allow a pathway for a developer to argue that they fulfill the terms laid out by this definition,” Gabriel Tolson, a spokesperson for the No campaign, said.
Opponents also say the campaign could have included a prohibition on data centers explicitly in the measure, as they did for some other categories of building projects. The controversial Delta conveyance project, for example, is exempted from the water infrastructure section, while high-speed trains (another controversial major project) are excluded from the transportation category.
The Yes campaign rejects that assertion. Both state and federal regulatory history would go against a data center being categorized as a broadband internet project, attorney Rachelle Chong, a former California Public Utilities Commission and Federal Communications Commission member, wrote in a counter analysis to one cited widely by Proposition 45 opponents. Listing out every project that does not qualify under the measure’s definition would have been impossible, measure proponents say.
If Prop 45 does pass and a company tried to invoke it to streamline approval of a data center, a lawsuit would be a near certainty.
Proponents say their consistent denials that data centers would benefit from the new rules would then be impactful in court. Neither side mentions data centers in their ballot statements — the short arguments voters can read as they make their choices. But the Yes campaign’s website currently says “data centers are not eligible for streamlining under Prop 45,” while the No campaign’s literature repeatedly says data centers would be allowed.
The Yes campaign’s “public statements, and their fear that the public will find out about this loophole that they’ve allowed to be included in this measure, does not close the loophole,” Tolson said.
If Proposition 45 passes and a data center proposal ends up in court over the rules, California judges would “look at the intent of the voters, and they look at the language in the ballot pamphlet to try to infer what a reasonable voter thought they were voting on,” UC Davis law professor Chris Elmendorf said.
“If the ballot language is silent then the court is just going to fall back on its best interpretation of what the ballot measure means,” he said. It’s less common, but possible, for judges to examine statements made on the campaign trail, he said.
Read more FBI stops former Rep. Eric Swalwell at SFO to seize his cellphone, laptop