Prop 45 Would Pollute California’s Air and Water. Voters Should Reject It.

Earthjustice has spent decades representing communities, environmental and health-advocacy organizations, environmental-justice advocates, and many other partners to protect clean air, clean water, community health, and ecosystems. The California Environmental Quality Act (CEQA) is one of the primary tools we and our partners use to do that work in the Golden State. Less than a month from now, California voters will decide the outcome of Proposition 45, a corporate-funded measure that would roll back CEQA’s safeguards for communities. Proposition 45 would allow many of the state’s most polluting or risky projects to go forward without meaningful consideration of health and environmental impacts, and without the community input that we all rely on. Californians should vote No. 

How CEQA Protects Communities 

CEQA requires analysis and mitigation of potential significant environmental and health impacts, along with public input, before development projects are approved. This feature of the law ensures people and communities have a seat at the table to help shape major projects that will affect Californians’ health, air and water quality, climate resilience, ecosystems, and much more. Under CEQA, a public agency must consider how a project might harm the environment before approving it. For projects that could have significant impacts, a state agency or local government prepares an environmental impact report to analyze those impacts. They must consider alternatives and mitigation measures that could reduce environmental harm and must also take comments from the public and other agencies into account along the way. 

Earthjustice has firsthand experience with the many ways CEQA protects communities and the natural world. This law makes meaningful public participation possible in decisions that affect people’s lives, especially for frontline communities that so often lack a political voice. CEQA also provides a means to ensure that all significant impacts to health and the environment are understood, analyzed, and mitigated. Often, CEQA improves projects by identifying potential harms and ways to reduce them. And sometimes it provides a way to rethink a project that is simply wrong for that location and that community. 

Here are just a few ways Earthjustice and our partners have used CEQA to protect communities in recent years: 

• Halting plans for an oil storage tank in Long Beach that would have emitted cancer-causing chemicals near schools. 
• Challenging a business development, including a major warehouse, in the San Bernardino County community of Bloomington that would have displaced existing housing and brought 1,300 diesel truck trips a day to a neighborhood already facing toxic pollution. 
• Ensuring a new 40.6 million square foot freight warehouse in the Inland Empire would invest tens of millions of dollars in electric vehicles, charging stations, and rooftop solar to offset the climate and health impacts of increased truck traffic.

As the federal government continues to undermine environmental protection across the country, CEQA and other state laws are even more essential than ever to protecting communities and ecosystems. 

What Prop 45 Would Do 

Prop 45 is a corporate-funded rollback of critical public health and environmental protections for some of California’s most polluting projects. Data center and warehouse developers, for-profit utilities, and other special interests are spending tens of millions of dollars to pass this measure. It would enable them to build those projects with less public oversight. Prop 45 would raise costs for taxpayers and limit public scrutiny, and it won’t make life more affordable for regular Californians. 

The measure creates a separate, fast-tracked review process for a broad range of projects it labels “essential,” from freeway expansions to dams, CO2 pipelines, and landfill gas facilities. Even data centers are likely to attempt to avoid robust environmental review under Prop 45, given its broad and vague provisions. Other projects with significant environmental impacts, like clearcut logging, could also evade meaningful review. The nonpartisan Legislative Analyst’s Office identified how the review process would change for covered projects if Prop 45 passes. Here are just a few examples: 

• Limits alternatives: Under current law, the public agency reviewing a new project must develop and weigh multiple alternatives that could lessen the project’s harm. Prop 45 lets developers propose a single alternative instead. For example, a new highway project wouldn’t have to consider and examine the feasibility and potential benefits of alternative routes to avoid or lessen impacts on communities. 
• Caps public participation: Current law sets a minimum period for public comment; Prop 45 sets a maximum, sharply limiting opportunities for input.  
• Ignores new information: Current law lets agencies take new information into account as the environmental review process moves forward; Prop 45 locks the standards in place on the day the application is filed.  
• Silences Native groups: Where current law requires consultation with a wide range of California Native tribes, Prop 45 limits consultation to tribes with federal recognition. 
• Eliminates accountability through the courts: Prop 45 also changes what happens when a community goes to court. It narrows what judges can consider in CEQA cases and generally would bar a judge from halting a project as a whole, even after finding that the agency completely failed to follow the law in approving the project.  

Prop 45 would also rush agency approvals, restrict environmental review for covered projects to an evaluation of whether the project violates “objective, quantifiable standards already in existing law,” and provides project developers a new avenue for suing agencies that don’t approve their projects. 

Taken together, these changes hollow out the core of California’s most important environmental protection law. An alternatives analysis with a single alternative, written by the project’s own developer, is not a meaningful, objective check on a project. A public comment period with a hard cap can close before residents, scientists, and other agencies have had time to weigh in. A review frozen at the time of application can ignore what we learn as the project is analyzed. And a court that cannot stop an unlawfully approved project has no power to make a public agency do its job correctly.  

The result is a process that looks like environmental review on paper but offers far less protection in practice. 

Who Pays the Price?

For families living near freeways, warehouses, and industrial sites, environmental review is often their only defense against more air pollution, more toxic runoff, and more health problems. Prop 45 severely weakens that defense. It also takes away control from local governments that would otherwise be responsive to communities’ interests in protecting themselves and the environment. 

Prop 45 doesn’t reduce costs; it shifts them to taxpayers. The Legislative Analyst’s Office estimates that the measure could cost state and local governments more than $100 million annually to implement. This analysis also notes that if Prop 45 leads to the approval of projects with harmful environmental impacts that otherwise would not have gone forward, as would likely happen under the measure, government agencies could face higher costs to respond to those impacts.  

With more polluting projects being built around the state, the likelihood of more taxpayer-funded cleanups also naturally goes up. We’ve already seen what can happen when a polluter does not or cannot pay the full cost of remediating pollution. For example, California taxpayers have already spent close to $1 billion to clean up lead contamination from just one industrial plant in Southern California, and there is still more work to be done. 

The Initiative Threatens Future Legislative Efforts

The pro-Prop 45 rhetoric falsely suggests that our elected leaders in Sacramento aren’t paying attention to California’s need for more affordable housing and other types of projects the state should be prioritizing. But the Legislature has already exempted most infill housing from CEQA, and it has enacted dozens of other bills that streamline environmental review or create exemptions for various other project types. This ballot measure is an attempt to do an end-run around the legislative process, for the benefit of special-interest groups. 

In fact, Prop 45 would actually make it much harder for the Legislature to adjust CEQA in the future. The measure requires a two-thirds legislative vote for any efforts to amend its complicated provisions, and restricts future related legislation to make only those changes that would “further the initiative’s purposes.” If Prop 45 turns out to be bad public policy, as we expect it will, it will be very difficult, if not impossible, to undo any aspect of it. 

Vote No on Prop 45 

CEQA is a living law. Earthjustice is not fundamentally opposed to updating it in ways that preserve the benefits of this law for communities and ecosystems while also meeting other policy goals. But Prop 45 does the opposite of that. Instead, Prop 45 would remove protections Californians depend on, and open the door to rampant pollution. Anyone who cares about the air we breathe, the water we drink, wildfire risk, and the wildlife habitat and open spaces that support our state’s economy should vote No on Prop 45.

Join over 500 organizations and dozens of elected officials who have endorsed the No On 45 position.

Sean B. Hecht serves as managing attorney of Earthjustice’s California Regional Office. Sean came to Earthjustice after two decades on the faculty of UCLA School of Law. In his work at UCLA, and in private and public law practice, he developed expertise in CEQA as both a practitioner and independent legal analyst.