How Prop 45 could reshape California’s fight over data centers

California voters considering Proposition 45 will decide the fate of a sweeping infrastructure measure that opponents warn could render the state’s brand-new data center laws virtually toothless.

That would make it far easier for developers to force unwanted facilities into local communities, potentially undermining a growing wave of bans, moratoriums, and anti-data-center resolutions at the city and county level.

Data center backers insist the ballot measure will do nothing for them — even as some data center beneficiaries are spending big backing Prop. 45.

Supporters have framed Prop. 45 as a tool to accelerate critical infrastructure projects, like housing and schools, and the measure does not directly name data centers among the sorts of projects it considers critical. But some legal scholars and environmental advocates say that the proposition’s technical language creates a loophole. By expediting environmental reviews under the California Environmental Quality Act for broad categories of projects — including broadband internet facilities and any additional infrastructure required to get them up and running — the measure could quietly allow data centers to bypass recent state safeguards and local scrutiny.

Julia Stein, a legal scholar and deputy director at UCLA School of Law’s Emmett Institute on Climate Change and the Environment, warns that the measure acts as a “blunt force instrument when it comes to streamlining” because of how wide its secondary umbrella extends.

“What Prop. 45 does is designate an entire class of projects that would be subject to streamlining, and then it also says that projects ancillary to those projects — so something that you might need to do in the course of the development of the project that’s exempted itself — would fall within that same streamlining bubble,” Stein said.

Telecommunications projects are explicitly streamlined under the proposition, “and there’s an argument that the development of data centers might be necessary for projects like that,” Stein added.

Other projects, like high-speed rail, are explicitly excluded from streamlining under the proposition — but data centers are not on that list, either. Stein and three other environmental law scholars told CalMatters that this opens the door for legal challenges.

“The fact that they excluded some projects but have not expressly excluded data centers, a court would probably actually interpret that not as an unintentional oversight, but rather as intent to include data centers in the initiative,” said Matt McKerley, an attorney with Shute, Mihaly and Weinberger.

Further, opponents argue that the proposition’s language, which includes a clause that it would supersede other related laws, would override measures like the recently-passed Senate Bill 887, which made it harder to fast-track environmental review for data centers.

Industry representatives say these objections to Prop. 45 are misplaced. The Data Center Coalition, an industry group supporting Prop. 45, insists their facilities fall outside the initiative’s scope, which focuses largely on housing development.