RCRC provides analysis of Prop 45: Recommends voters oppose this proposition

According to a statement from Representing California’s Rural Counties (Lassen County is a member), this memo provides an analysis of Proposition 45, which would make significant changes to local and state permitting processes, the California Environmental Quality Act, and tribal consultation obligations for a wide variety of “essential projects.”

This proposition will be before the voters for consideration on the November 2026 ballot.

RCRC Staff is recommending that the RCRC Board of Directors adopt an “Oppose” position.

In brief, the ballot measure
• Expedites local and state permitting processes for “essential projects” and limits the scope of information that may be required of a project applicant.
• Requires all other approvals from public agencies other than the lead agency to be decided either 90 days from when the application was deemed completed or one day after approval of the project by the lead agency, whichever occurs later.
• Requires “essential projects” projects utilizing these provisions, and any related and ancillary public, private, and utility infrastructure and public service facilities, to use a skilled and trained workforce, pay prevailing wages, and/or have a project labor agreement.
• Expands tribal consultation and mitigation requirements but limits the universe of consultation to only federally recognized tribes.

Modifies the California Environmental Quality Act for these projects to
• Expedite the timeframe for adoption of environmental documents and requires a public agency to base its approval or denial on any available environmental review documents if the those deadlines cannot be met.
• Allow a project applicant to elect to vest into any threshold of significance adopted or routinely used by any public agency.
• Limit the number of project alternatives that must be considered and prohibit public agencies from requiring consideration of other project alternatives.
• Reduce the size and scope of the administrative record.
• Replace the “fair argument” standard with the “substantial evidence” standard of judicial review.
• Compress the judicial review process, narrows the universe of remedies available to the court, and precludes future litigation in certain circumstances.

Background
Proposition 45 is a long and complex measure with three separate and distinct components, which will be described individually below. An applicant can choose to utilize none, some, or all the provisions included in Proposition 45; however, ALL essential projects utilizing Proposition 45 MUST comply with the tribal screening/consultation and labor requirements outlined below.

Scope of essential projects
• Housing – Residential units, mixed-use development, transitional housing, emergency shelters, or supportive housing, farmworker housing, group living accommodations, student housing senior housing, subdivision or common interest development, conversion of an existing commercial building to residential use.
• Water – Construction, expansion, repair, replacement, improvement, or augmentation of a public water system, a system that directly or indirectly provides water to a public water system, or a system described and within the scope of the state Water Resilience Portfolio (not including Delta conveyance facilities).
• Public health – A medical treatment facility, including a health facility, a clinic, or medical office building.
• Public safety – Police, sheriff’s, or fire station or wildfire risk reduction project, including related to electric utility lines, roads, infrastructure, vegetation management, fuel reduction, home hardening, fuel breaks, and reducing fuel loading.
• Broadband Internet access – A project to provide mass-market retail serve by wire service, wireless service, or radio that provides capability to transmit and receive data from all internet endpoints, excluding dial-up service.
• Education facility – Acquisition, construction, expansion, remodeling, renovation, improvement, furnishing, or equipping of an educational facility.
• Transportation – Street, highway, and mass transit projects, public facilities for nonmotorized traffic, EV charging and refueling projects.
• Excludes projects that involve a jail or detention facility or development of a new oil or natural gas production facility.
• “Essential project” ALSO includes all related and ancillary public, private, and utility infrastructure and public service facilities to serve an essential project, including electric, telecommunication, gas, wastewater, stormwater, transit, police, fire, and transportation improvements (not including High Speed Rail).

Clean energy
Projects that support climate, energy efficiency, reliability, electrification, sustainability, or clean energy objectives by
• Producing, generating, or storing electricity derived from renewable or sustainable resources (solar, wind, geothermal, fuel cells, small hydroelectric facilities (30MW or less), digester gas, MSW conversion, landfill gas, ocean wave/thermal/tidal, and associated transmission lines.
• Producing generating, storing, transmitting, or distributing clean hydrogen.
• Developing, constructing, or installing microgrids.
• Capturing, transporting, and/or storing carbon dioxide.
• Developing, constructing, upgrading, or expanding transmission or distribution systems.

Local and state permitting
• Modifies and expedites the process by which local and state agencies must review and act upon permit applications for essential projects.
• Prohibits a local government from requiring an applicant to submit information that was not included on a publicly available checklist that existed at the time the initial application was completed.
• Requires all other approvals from public agencies other than the lead agency to be decided either 90 days from when the application was deemed completed or one day after approval of the project by the lead agency, whichever occurs later.

California Environmental Quality Act
• Expedites the deadline for preparation and adoption of CEQA environmental documents to 365 days after submission of a complete application for an EIR, 180 days for a negative declaration or mitigated negative declaration, or 90 days for other determinations.
• Allows the deadline to be extended only upon written request from the project applicant.
• If a lead agency fails to meet those timeframes, it must, within 60 days, complete the environmental review or assemble available environmental review documentation and hold a public meeting, make a final determination on the available environmental review, and either approve or disapprove the project.
• Establishes a 20-day public comment period for a negative declaration or mitigated negative declaration and a 45-day public comment period for a draft EIR, supplemental EIR, or subsequent EIR. Prohibits extending the public comment period except by a court.

Narrows the scope of the CEQA administrative record to include only
• Written comments received during the public comment period (or received at least 48 hours prior to a public hearing for a project with no established public comment period).
• Written comments received at least 48 hours prior to a public hearing on issues that could not have been raised during the public comment period because of significant changes to the project that precluded the issue from being raise or where new information was not and could not have been known, with a narrowed scope of what constitute “significant changes to the essential project”.
• Oral testimony at a noticed and recorded public hearing.
• Lead agency or applicant responses to comments or questions from a public agency.
• Notices, studies, and other documents required to be sent or distributed to members of the public by a lead agency, made available to the public at a public repository, or included on the lead agency’s website.
• Allows a project applicant to elect to vest into any thresholds of significance should apply to a project to the extent a public agency has published, adopted, or routinely used such thresholds.
• Requires public agency actions to be based on compliance with existing laws, which only includes formally adopted legal requirements that existed and were in effect on the date the application was submitted to a public agency, with an exception for later-adopted requirements that are necessary to mitigate or avoid a specific, adverse life-safety impact based on objective, identified and written public safety standards, policies, or conditions.
• Provides that an EIR need only discuss the proposed project, a single project alternative (which should be designed to be compatible with applicable local zoning and land use policies, to the extent practicable), and a no project alternative.
• Prohibits public agencies from requiring analysis or any additional alternatives.

Changes judicial review for CEQA claims for essential projects as follows
• Limits judicial review for purposes of CEQA to a public agency’s non-compliance with objective existing law.
• Seeks to replace the “fair argument” standard with a “substantial evidence” standard of judicial review.
• For claims related to noncompliance with public participation procedures, limits the court to only determine whether the failure to comply with those procedures was arbitrary and capricious and resulted in prejudicial error.
• Requires judicial review of essential projects to be completed within 270 days of the public agency filing the notice of determination or notice of exemption, which may be extended by the court for up to 90 days.
• Limits the scope of remedies, including injunctive relief, that may be ordered by the court for noncompliance with CEQA.
• Prohibits any further action or proceeding challenging project implementation or approval if the public agency’s approval or authorization was not subject to judicial challenge, the approval or authorization was challenged and upheld, or the project complied with any corrective actions previously ordered by the court.
• Prohibits legal challenges to minor modifications to an essential project that do not result in any new significant impacts, or which do not substantially worsen any previously identified significant impacts.

Labor requirements
• All essential projects (other than housing projects) utilizing these provisions must pay prevailing wages and have a project labor agreement or use a skilled and trained workforce.
• Housing projects must generally pay prevailing wages.
• Wildfire risk reduction projects are exempt from these requirements if the project is undertaken directly by a public agency using its own employees and those employees are covered by a collective bargaining agreement or other laws that provide equivalent wage, training, and safety standards.

Tribal screening and consultation requirements
• Limits consultation obligations for “essential projects” to only federally recognized tribes.
• Requires any technical studies to be provided to consulting tribes for review and input.
• Requires proffered tribal traditional knowledge to be incorporated in the identification, treatment, and protection measures concerning tribal cultural resources.
• Expands the scope of tribal cultural resources to include any site, feature, place, cultural landscape, or sacred place identified by the Native American Heritage Commission as a sacred place or included in a tribal government register maintained by a Tribal Historic Preservation Officer.
• Requires early screening to identify and evaluate tribal cultural resources upon the earlier of the submittal of a preliminary application, the applicant’s written notice of election to participate in a preliminary scoping process with streamlined alternatives analyses, or filing of an application for an essential project. The initial screening process is intended to identify and evaluate tribal cultural resources prior to an application being deemed complete.
• Requires projects to avoid impacts to and preserve in place tribal cultural resources (where feasible), consider and incorporate tribal mitigation and treatment measures, provide technical reports to consulting tribes, and include measures for inadvertent tribal cultural resource discovery during construction-related ground disturbance.
• Limits lead agency approval of essential projects to situations when tribal consultation has concluded in good faith, whether there is agreement among all parties and inclusion of any agreed-upon mitigation and avoidance measures, and other measures have been adopted to minimize impacts to resources that could not be avoided or preserved in place.
• Removes the ability for a lead agency to approve a project in situations where any party, acting in good faith and after reasonable efforts, determines that mutual agreement cannot be reached.

Discussion
Permit process provides greater certainty for project applicants, but significantly increases
preparatory work and administrative challenges for local agencies while constraining informed decision-making.
• BACA provides applicants a much more expedited local permit review process with far greater certainty for when final decisions must be made, but does so in a way that may constrain informed local decision making and environmental permitting decisions.
• These timelines may be very difficult to meet in practice, especially for smaller agencies with limited staff, thus requiring increased staffing costs and heightening litigation risk.
• BACA effectively requires local agencies to develop comprehensive permitting checklists for each of the broad array of essential projects, as the measure precludes locals from requesting any information that was not included on the checklist of the project applicant. This puts local agencies in the awkward of position of having to expend significant time and resources developing permitting checklists for projects that may or may not ultimately come before them. The alternative is not having a checklist is being unable to require more specificity if an application is submitted.
• The ballot measure provides time certainty for project applicants by requiring CEQA documents to be prepared within specific timeframes. If the environmental documents are not completed within those timeframes, the measure requires the local agency to approve or reject the project based on the environmental review documents available. This could preclude informed decision making and mitigation of the project’s significant effects on the environment, and creates significant litigation risk.
• The ballot measure creates certainty for project applicants by defining the universe of “existing laws” with which the project must comply. That universe is limited to those objective existing laws that were in effect at the time the project application was submitted. The only post-application laws that will apply to a project are those which the lead agency determines are necessary to mitigate or avoid a specific, adverse life-safety impact.
• The ballot measure limits judicial remedies by limiting the circumstances in which a court can issue an injunction or stop work on a project. Under the measure, the court may only issue an injunction where it can show, by clear and convincing evidence, that the project would have a specific, adverse impact on public safety and there is no feasible method to mitigate that impact.
• The ballot measure precludes legal challenges to “minor modifications” to an essential project that do not result in any new significant impacts or substantially worsen previously identified significant impacts.
• The measure overlays an entirely new set of procedural rules on top of the complex existing CEQA and permitting processes, while nonetheless expressing the intention to “maintain California’s strongest-in-the-world environmental protections.” This creates significant legal uncertainties that are likely to embroil local governments in additional litigation for decades to come.

Ballot measure embodies many significant CEQA reform measures previously supported by RCRC, but conditions those CEQA reforms on the project applicant using a skilled and trained workforce or having a project labor agreement
BACA contains many of the CEQA reform concepts that RCRC has long advocated for, including attempting to shift away from the “fair argument” standard of judicial review, reducing unnecessary alternatives analyses, clarifying and narrowing the scope of the administrative record, clarifying the public comment process, avoiding late hits/document dumps, and expediting judicial review. On the other hand, these “reforms” are only available to projects that agree to use a skilled and trained workforce or use a project labor agreement (or pay prevailing wages for housing projects). On balance, BACA will provide more certainty and reduce the risk of CEQA litigation and delays, but only for projects that can bear significantly higher project labor costs and compliance obligations that may not be achievable in many rural areas.

Ballot measure allows project applicants to cherry pick thresholds of significance adopted by distant and unrelated jurisdictions
• Proponents argue that the measure is deferential to local decision-making and standards. However, the measure is carefully crafted to enable the project applicant to elect to use any published, adopted, or routinely used threshold of significance adopted by “a” public agency. This could be interpreted to mean that if any public agency has adopted a more lenient threshold of significance, the applicant can override the locally adopted threshold and vest into that alternative threshold adopted by another public agency. Ballot measure limits the ability for local agencies to require consideration of project alternatives.
• Under BACA, CEQA must evaluate the project, a single proposed alternative, and the no-project alternative. This helps the project proponent avoid the costs, complexities, and risk associated with evaluating other alternatives – and not without justification. However, the measure also precludes local agencies from requiring consideration of any other alternatives, thereby limiting local discretion and ability to consider a broader array of project alternatives or configurations as the need arises.

Ballot measure limits tribal consultation obligations for “essential projects” to only federally recognized tribes, but expands tribal consultation and resource protection requirements
• The ballot measure’s tribal consultation requirements are non-discretionary and replace many existing tribal consultation requirements.
• The ballot measure limits consultation requirements to federally recognized tribes, meaning that lead agencies will not have to consult with non-federally recognized tribes for essential projects using the BACA process.
• The measure affords greater deference to and incorporation of traditional tribal knowledge in the identification of tribal cultural resources and mitigation measures to avoid or minimize impacts to those resources.
• The measure requires tribal cultural resources to be avoided and preserved in place, where feasible.
• The measure significantly expands the universe of tribal cultural resources to include anything included on a federally recognized tribal government register.

Ballot measure may limit the ability for any party, acting in good faith and after reasonable efforts, to determine that mutual agreement cannot be reached between the parties.
• Under existing law, a project may be approved when tribal consultation ends. That process allows consultation to end when any party, acting in good faith and after reasonable efforts, determines that mutual agreement cannot be reached on the matter. The ballot measure does not include this offramp and instead only allows a lead agency to approve an essential project when the tribal consultation has concluded in good faith, where mutually agreed-upon mitigation and avoidance measures are included as enforceable project conditions, and where the lead agency has documented its basis for determining that avoidance and preservation in place are not feasible. It is not immediately clear how lead agencies or courts will interpret this change in law; however, it is likely to b construed as an attempt to bar the ability for any party to unilaterally determine that mutual agreement cannot be reached.

Labor requirements impose additional costs and logistical challenges
• If a project applicant chooses to use the BACA process, the ballot measure will require local governments and special districts to use a skilled and trained workforce, adopt a project labor agreement, and/or pay prevailing wages for all related and ancillary public, private, and utility infrastructure and public service facilities to serve that essential project, including electric, telecommunication, gas, wastewater, stormwater, transit, police, fire, and transportation improvements.• It can be difficult for project applicants or local governments in some rural areas to find a skilled and trained workforce or contractors who pay prevailing wage, thereby undermining the utility of the measure or complicating compliance when carrying out related and ancillary infrastructure and facility improvements to serve the essential project.

Legislative changes to the ballot measure will be virtually impossible
The ballot measure allows the Legislature to amend the statute, but only by a 2/3 vote of each house after those changes have been in print for at least 12 business days prior to passage. The measure also limits the Legislature’s ability to change the law by only allowing changes that are “consistent with, and further the purposes of” the measure. This will make it very difficult to adopt changes that even seek to clarify ambiguous provisions that could be construed to not work in favor of an expedited processes that is highly deferential to the project applicant.

Permit streamlining benefits for wildfire risk reduction projects are likely illusory
The ballot measure purports to simplify CEQA compliance for a broad array of wildfire risk reduction projects; however, those benefits are generally illusory and unlikely to be realized by any local governments. Like any other “essential project,” BACA requires wildfire fuel reduction projects to comply with the skilled and trained/project labor agreement requirements that are difficult to achieve in rural areas, especially for fuel reduction projects. As an alternative, BACA allows these projects to qualify for the CEQA and permitting benefits of the measure, but only if the entirety of the project is undertaken directly by a public agency using its own employees that are covered by equivalent wage, training, and safety standards under a collective bargaining agreement or other laws. Given the limited personnel local governments have to carry out fuel reduction projects, and the fact that many are performed by contractors, this alternative pathway is likely to have little, if any, benefit for rural jurisdictions.

Staff recommendation
RCRC staff recommends an “Oppose” position for Proposition 45.