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Professors and practitioners of environmental law expressed uncertainty whether Proposition 45, a ballot initiative that would change the rules governing certain building projects under the California Environmental Quality Act, applies to data centers.
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The measure reforms the environmental review process for a number of “essential projects,” such as water systems, clean energy, health facilities and transportation. However, opposition to Prop. 45 has grown from uncertainty regarding its application to data centers, which its language does not specifically mention.
The proposition would impose a deadline of 365 business days on government agencies to approve or reject a project’s environmental impact report. It would also require that any legal challenges brought by project opponents be resolved within 270 days.
Jennifer Harder, a professor of environmental law at University of the Pacific’s McGeorge School of Law, said she “wouldn’t overly focus on data centers as a potential concern.” According to Harder, Prop. 45 shifts significant discretion over the CEQA review process to applicants rather than regulators, making environmental permitting requirements less strict overall.
“The key is whether the project can fit within one of those essential categories,” Harder said. “Data centers are one potential example of a project that may have impacts, but I would be much more focused on very large, complex housing projects and water infrastructure projects. There may be a way to make CEQA more efficient for some of these projects, but the way that Prop. 45 approaches that efficiency is very broad and gives a lot of power to the applicants.”
Ballot initiatives can have unintended consequences
Harder said that because Prop. 45 is a ballot initiative, it will not undergo the standard legislative process — which often includes several committee hearings, amendments and floor debate. This means its long-lasting effects are unpredictable, according to Harder.
“It is very difficult to implement the changes from Prop. 45 and see where they work and where they don’t, and then to make changes that improve the process,” Harder said. “Generally speaking, I am not a fan of legislating by initiative, particularly when we’re talking about a law that is so fundamental to California as (CEQA).”
Dave Owen, an environmental law professor at University of California Law, San Francisco, echoed Harder’s concerns about Prop. 45’s ambiguity. The ongoing debate about whether the measure would include data centers, Owen said, is illustrative of a broader issue with its language.
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“If we can’t figure out what it actually means or we can’t agree on what it means before it goes to the voters, but we’re still locking it in place, that’s worrisome,” Owen said. “It’s one thing to have ambiguities in a law enacted by the Legislature that the Legislature can then just clean up by a majority vote the next year…It’s very different in a ballot initiative.”
Given this confusion about how Prop. 45 would be implemented if it took effect, Owen said interest groups may attempt to apply it to data centers.
There’s room left for interpretation
“Broadband internet access” is among the categories of “essential projects” explicitly mentioned in the measure. The category includes any project that is “incidental to” or that “enable[s]” retail internet services. According to Owen, this may provide a loophole for data centers to be included.
“Data centers are part of our electricity infrastructure and our data infrastructure, so it wouldn’t surprise me if, after it’s enacted, data center proponents try to fit data center proposals into it,” Owen said.
Ryan Thomason, an attorney specializing in permitting for land use and natural resources development projects, said he does not believe data centers would be included under Prop. 45. However, according to Thomason, streamlining the CEQA process for longer projects would likely result in less thorough environmental reviews across the board.
“Let’s say you’ve got a really complex project,” Thomason said. “Typically those environmental review documents are going to be thousands of pages. It puts everybody in a bind because you can’t approve a project without full environmental review…For some of the larger projects, I don’t see how you could actually get through it in that short timeframe.”
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