The true scope of Prop. 45's changes to environmental protection

Proposition 45, which appears on California's November ballot, would amend the state's primary law governing public participation in environmental reviews. The ballot arguments in favor of the proposition sweepingly promise that the initiative will lower the high cost of living, reduce housing costs, and lower electricity costs. The proposition purports to secure all these outcomes by changing deadlines to "speed approval" of a wide variety of very large projects.

Before accepting these assertions, ask yourself two questions and apply common sense to answer them. First, if this initiative centers only on changing deadlines, why would it take 41 intricately detailed pages to do so? Second, why would the impartial Legislative Analyst's Office estimate that implementing the initiative could cost $100 million annually for the first several years?

In fact, Proposition 45--written and promoted by development interests--goes much further. It will weaken the standards used to identify the environmental impacts of both a wide array of large, polluting projects and any projects that are "ancillary" to those projects (a truly expansive range of development). It will limit the government's ability to reduce those impacts by shifting power from governments to developers by curtailing the environmental regulation that has protected California for 50 years. It also will reduce the public's ability to fully participate in the approval process for these large projects.

The development challenges we face today can't be erased by sharply reducing communities' rights to understand and address projects. Such action will have real consequences that will reverberate for decades to come. We have only to look at the history of large infrastructure projects built before the advent of environmental review--and their harms to environmental justice communities--to know that.

From an environmental standpoint, limiting environmental review of massive developments is illogical. Proposition 45 applies to very big projects such as dams, large-scale mixed-use developments in remote areas, and major transportation projects like highways. These types of projects do have significant environmental consequences. They should be comprehensively analyzed. Nor is it logical to allow a cascade of projects that could be considered "ancillary" to--and which will only widen the impacts of--these larger projects to escape the usual scrutiny.

Proposition 45 could also weaken regulation of data centers. Now well aware of the outcry over such facilities, proponents say it will not. But one UC Berkeley scholar has repeatedly argued the measure likely covers data centers. You decide: Is a data center either an "essential broadband Internet access project" or "ancillary" to such a project? If so, Proposition 45 will limit serious public scrutiny of them.

In short, the initiative is not just a "streamlining" or "timesaving" measure. It substantively diminishes current environmental protection in important ways. Here are just five of them:

1. Measuring environmental impacts: The first step in the environmental review process is identifying any significant environmental impacts the project will cause. Public agencies typically do so by determining whether an impact exceeds a "threshold."

Agencies now use the best current science to identify these thresholds. The initiative, however, allows the applicant to choose the standards by "vesting" into any prescribed list of standards. The agency then must use the applicant's list, which is unlikely to favor a robust look at environmental impacts.

2. Examining alternatives: Agencies currently must examine a range of less harmful alternatives to a development proposal. The requirement is logical: Will an alternative reduce the project's environmental impacts? The developer's project, created with other concerns in mind, is not likely to focus on that goal.

Proposition 45, however, allows the developer to limit that undertaking to one alternative--picked by the developer. It would change the way environmental review currently works for very large projects by prohibiting the agency from examining any other alternatives, including options proposed by the public. And developers, of course, are unlikely to pick an environmentally protective alternative that is more costly for them. Moreover, the alternative chosen by the developer must be compatible with zoning and local land use policies only "[t]o the extent practicable."

3. Reducing projects' environmental impacts: Evaluating significant impacts and alternatives helps public agencies fulfill the core purpose of environmental analysis: identifying feasible ways to reduce a project's environmental harm. This practice is well established and routinely used in agency procedures.

Proposition 45 will inevitably weaken this mitigation process. Because agencies will lack the full information they need to make informed decisions about the significance of impacts, they will be constrained in their ability to require measures that will reduce those impacts. The result will be approval of projects with more environmental impacts.

4. Constraining consideration of public comments: The law currently allows the public and other public agencies to submit written comments critiquing the environmental review of a proposed project. The agency then responds and often makes changes to the project. Until now, the public could submit such comments until the agency approves the project. These would often address last-minute changes in the project.

No more. Proposition 45 caps the period for public comment on environmental documents and all public comments received after the period closes would be "excluded" from the record. Notably, this new constraint does not apply equally. Any later comments submitted by the project proponent during the administrative process are included in the public record. At the same time, the initiative ensures that any internal communication between the developer and the agency is not part of the record that a court would later review.

Here, as in other places, the proposed new rules are designed to be one-sided. The changes to the record are intended to favor developers in the approval process and in any subsequent litigation. The changes shrink the transparency of the public approval process. And under the initiative, a court could not remedy a violation of the public participation requirements unless it finds that violation was "arbitrary and capricious."

5. Authorizing new lawsuits: Finally, Proposition 45 creates a new avenue for litigation by developers. If the public agency puts conditions on a project to mitigate environmental effects--for example, by limiting traffic impacts--the developer can challenge those conditions in court. Facing well-funded lawyers, public agencies will either have to spend considerable money defending their environmentally protective actions or drop the conditions.

These are just a few examples; there are many others. All the proposed changes point in the same direction: to curtail the analysis and regulation of large, environmentally damaging projects.

So, when supporters of Proposition 45 characterize the initiative as "modest" or "boring" reform, don't be fooled. It is designed to fundamentally change the balance between developers and the communities and environments in which they build. And beware of the promise, in the ballot arguments for the proposition, that it "maintains California's strongest-in-the-nation environmental protections" and "protects community input." That promise is not accurate.