A debate has emerged over whether California’s Proposition 45 would extend environmental review requirements to data center projects, a question that is drawing scrutiny amid high-profile developments like the proposed Imperial Valley Data Center Campus. Supporters and opponents differ over how the initiative, which aims to streamline approvals for “essential projects,” defines its scope and whether data centers fall under its provisions.

The initiative’s language covers projects that provide internet access “to, and from, all or substantially all internet endpoints,” but it explicitly excludes certain types of infrastructure such as nuclear plants, high-speed rail, and jails. Data centers are not specifically named among these exemptions, leading to differing interpretations.

Dan Dunmoyer, president and CEO of the California Building Industry Association, which backs Proposition 45, insists that data centers were deliberately excluded in the measure’s drafting. He argues that even though they are not explicitly listed, data centers do not meet the measure’s definition because they function differently from internet service providers like AT&T or Comcast. Rachelle Chong, a former Federal Communications Commission member, echoed this view in an op-ed, stating that data centers perform distinct roles from internet access providers and thus should not be subject to the proposition.

In contrast, some land-use attorneys, including Matthew McKerley and Richard Frank, argue that many modern data centers fit within the measure’s criteria because they house equipment transmitting consumer data to and from the internet. They note significant campaign contributions from companies with data center interests, such as a $250,000 donation from Prologis, which developed two data centers in San José.

UC Berkeley law experts emphasize the uncertainty surrounding the issue. Ethan Elkind, director of the climate program at UC Berkeley Law, noted that data center proponents will likely argue they qualify under the initiative, leaving final interpretation to the courts. His colleague Eric Biber highlighted that the proposition’s language demands a broad interpretation favoring approval of essential projects, which could incline courts to include qualifying data center projects if there is ambiguity.

Legal experts familiar with California’s environmental regulations have differing opinions on likely judicial outcomes. Ryan Thomason and J. Scott Miller, partners at Mitchell Chadwick law firm, argue that the initiative’s definition aligns with existing laws that distinguish between internet service providers and content or facility operators, suggesting courts may exclude data centers from the measure’s scope.

Supporters of Proposition 45 also stress that the measure does not override local zoning laws or grant automatic approval of data centers. Dunmoyer pointed out that local governments retain authority over siting decisions, and the initiative would not expedite the California Environmental Quality Act (CEQA) review without local consent.

This debate has tangible implications illustrated by the Imperial Valley Data Center Campus project. Although the site was zoned for data centers and initially received a CEQA exemption from Imperial County officials, community opposition prompted a moratorium on new data center construction. The moratorium was later rescinded following a court order after the developer sued the county.

Should Proposition 45 pass and encompass data centers, legal experts warn that local jurisdictions could lose the ability to impose new restrictions once a project application is submitted. Biber explained that the measure prevents changes to regulations affecting projects in progress, effectively nullifying moratoria established after applications are filed, although existing bans would remain unaffected.

Opponents argue that this could enable developers to sidestep environmental reviews and challenge any court rulings that overturn approvals due to CEQA violations, limiting courts to halting only the specific project component needing correction.

Sebastian Rucci, principal developer of the Imperial Valley data center, said he intends to advance the project on environmentally responsible terms without undergoing the CEQA process, stating he is prepared to relocate if necessary. He emphasized the economic benefits, citing plans to create at least 100 permanent jobs and generate $28.7 million in annual property tax revenue, while criticizing CEQA as a tool some use to block projects rather than protect the environment.

The outcome of the Proposition 45 vote could significantly affect data center development regulations across California, with unresolved questions about the measure’s impact on infrastructure projects and local control over land use.