California's Top Land Use Attorneys Agree: Prop 45 Would Speed Data Center Construction

SACRAMENTO – In a column in the legal publication The Daily Journal, two of the state’s leading land use attorneys today confirmed that Proposition 45 will fast track the construction of controversial data centers in California. Proposition 45 is the California Chamber of Commerce’s 41-page ballot initiative that would roll back state environmental protections and weaken the state’s defense against President Trump’s attack on state clean air, water, and public health laws.

Richard Frank, Senior Fellow at the California Environmental Law & Policy Center at the UC Davis School of Law, and Matthew McKerley, a land use attorney specializing in the California Environmental Quality Act (CEQA), note “as they did for other projects, the proponents could have expressly excluded data centers in the text of the initiative. They didn’t.”

“The drafters of Prop. 45 explicitly excluded a long list of controversial projects. The measure expressly carves out high-speed rail, the Delta Conveyance Project, nuclear generation, jails, immigration detention facilities, prisons and oil and gas facilities. Data centers are conspicuously absent from this list. Under bedrock principles of statutory interpretation, a California court will read that silence not as an oversight, but rather as deliberate intent to include data centers in Prop. 45’s coverage. As they did for other projects, the proponents could have expressly excluded data centers in the text of the initiative. They didn’t.

"Tellingly, while publicly proclaiming that Prop. 45 has nothing to do with data centers, the Yes Campaign has quietly taken in $2 million from three companies that are actively building them. Prologis, a builder of two San Jose data center campuses, has given $250,000. California Resources Corporation, which is co-developing a 275 MW data center on its Elk Hills oil field, routed $500,000 into a Chamber-controlled committee four days after the measure cleared for circulation, and contributed another $500,000 directly to support Prop. 45 just two weeks ago. And PG&E has given $750,000, a $500,000 direct contribution and $250,000 to the Chamber-controlled committee, while collaborating with a Canadian mega developer to incorporate data centers into three San Jose housing developments.

“Meanwhile, existing environmental law is protecting communities from data centers’ most significant impacts,” they wrote.

The full article can be found here: https://www.dailyjournal.com/articles/394431-prop-45-will-speed-data-center-construction

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