{"id":9766,"date":"2026-11-01T13:54:35","date_gmt":"2026-11-01T13:54:35","guid":{"rendered":"https:\/\/silvybrand.com\/?p=9766"},"modified":"2026-11-01T13:54:35","modified_gmt":"2026-11-01T13:54:35","slug":"prop-45-california-data-centers-energy","status":"publish","type":"post","link":"https:\/\/silvybrand.com\/?p=9766","title":{"rendered":"Prop 45 in California could be hiding a loophole for data centers"},"content":{"rendered":"


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A high-stakes California ballot measure pitched as a fast track for \u201cessential\u201d infrastructure could wind up giving data center developers a loophole to evade public scrutiny, environmental advocates warn.<\/p>\n<\/div>\n

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Proposition 45 would shorten timelines for state-mandated environmental assessments for eligible projects and make it more difficult for residents to challenge those projects in court. Proponents say passing the measure would help alleviate the state\u2019s housing shortage<\/a> and meet rising electricity demand with new renewable energy projects. Environmental groups and some legal experts, however, warn that data center developers backing the proposition could escape scrutiny if Prop 45 becomes law.<\/p>\n<\/div>\n

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\u201cThe concern here is that data center developers will find a way to shoehorn their projects into the definition of an essential project and then get to take advantage of \u2026 the fast-track review that it\u2019ll create,\u201d says Fernando Gaytan, a senior attorney at the nonprofit environmental law organization Earthjustice, which opposes Prop 45. \u201cCommunities get cut out of the conversation.\u201d<\/p>\n<\/div>\n

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\u201cCommunities get cut out of the conversation.\u201d<\/p>\n<\/div>\n<\/div>\n

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Prop 45 would loosen standards for certain projects subject to the California Environmental Quality Act (CEQA). CEQA requires state agencies to perform environmental reviews and work with project developers to find ways to limit any harmful impacts to the environment and public health. Crucially, CEQA also mandates that state agencies gather community input and consider public comment before issuing any approvals.<\/p>\n<\/div>\n

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Specifically, Prop 45 would create a 365-day deadline<\/a> for agencies to complete the environmental impact report for a project. It also stipulates that any legal challenges would need to be settled within 270 days. It would only allow for 45 days of public comment, and it would only require state agencies and developers to consult with Native American tribes that have been federally recognized. CEQA as it\u2019s currently written sets a minimum rather than a maximum number of days for public review, and mandates consultation with tribes that might be impacted by a project even if they\u2019re not formally recognized by the federal government as having \u201cgovernment-to-government<\/a>\u201d relations with the US.<\/p>\n<\/div>\n

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During the CEQA review process, state agencies develop alternatives that developers can take to mitigate environmental and health risks. Prop 45 would turn that on its head, making developers responsible for coming up with a single alternative project plan for regulators to consider. The proposition would also strip away an agency\u2019s authority to repeatedly ask a developer for more information about a proposed project; state regulators would need to specify all the information a company is required to provide at the start of the application process.<\/p>\n<\/div>\n

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On top of all that, Prop 45 would bar courts from halting a project altogether even if it finds that the regulatory agency failed to correctly comply with CEQA. The judge would only have the ability to pause specific parts of a project that are problematic, rather than forcing a full stop to construction. That\u2019s the piece that\u2019s most egregious for Gaytan. \u201cIt\u2019s hard to undo harms once you\u2019ve already started a project,\u201d he says.<\/p>\n<\/div>\n

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Data centers are a hot-button<\/a> election<\/a> issue<\/a> for midterms across the US and have become a point of contention for Prop 45 as well. The proposition lists nine types of \u201cessential\u201d projects that would be eligible for streamlined review, including housing, clean energy, and \u201cbroadband Internet access.\u201d<\/p>\n<\/div>\n

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Gaytan and some other legal experts contend<\/a> that the latter designation \u2014 broadband internet access \u2014 could include data centers. The language<\/a> includes any project that would \u201cprovide mass-market retail service by wire service, wireless service, or radio to customers in this state that provides the capability to transmit data to, and receive data from, all or substantially all internet endpoints, including, but not limited to, any capabilities that are incidental to and enable the operation of the communications service.\u201d<\/p>\n<\/div>\n

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Proposed data centers that include any broadband transmission infrastructure might be able to squeeze into that definition, UC Davis School of Law professor emeritus Richard Frank and attorney Matthew McKerley write in a recent column<\/a> in the Daily Journal.<\/em> They also point out that companies currently developing data centers have poured hundreds of thousands of dollars into a campaign to support Prop 45. And while Prop 45 excludes certain types of projects, like nuclear energy and dial-up internet access service, it doesn\u2019t explicitly bar data centers.<\/p>\n<\/div>\n

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Proponents, meanwhile, argue that Prop 45 would not apply to data centers. \u201cThe fact that data centers may play a role in supporting the Internet does not make them \u2018essential broadband Internet access projects\u2019 under Prop 45,\u201d attorney and lobbyist Kurt Oneto writes<\/a> in The National Law Review<\/em>. The Yes on Prop 45 campaign didn\u2019t immediately respond to a request for comment.<\/p>\n<\/div>\n

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Prop 45 has managed to garner support<\/a> from the California and Hawaii chapter of the NAACP, which has been among one of the most vocal civil rights organizations to oppose data center developments across the US<\/a>. The NAACP filed suit<\/a> against xAI over air pollution from gas turbines at its Colossus 2 data center, and the Texas chapter<\/a> has called for a statewide moratorium<\/a> on data center development.<\/p>\n<\/div>\n

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\u201cWorking families and communities of color pay the highest price when essential projects like housing, clean energy, water, health care facilities, and transportation take years longer and cost millions more than they should,\u201d Rick Callender, president of NAACP California\/Hawaii State Conference, said in a September 9th press release<\/a>. \u201cProp. 45 is about accountability, not shortcuts, creating a smarter process that gets these projects built sooner while protecting civil rights and environmental safeguards.\u201d<\/p>\n<\/div>\n

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Regardless of whether Prop 45 influences data center development in California, its opponents worry that it could disempower the same communities that the new projects it covers are supposed to benefit. \u201cIt\u2019s about public participation and democracy,\u201d Gaytan says. \u201cIt\u2019s about neighbors being able to say, \u2018I want you to be transparent with me about what\u2019s going behind that wall.\u2019\u201d<\/p>\n<\/div>\n

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