A summary of BACA

An overview of my analyses of Proposition 45

I’ve written a lot on the Cal Chamber sponsored initiative to dramatically change CEQA, BACA, which is Proposition 45 on this year’s ballot.  Here are some key takeaways from what I’ve written, as well as links to the relevant blog posts.

First, BACA will not just apply to CEQA.  It broadly expands vested rights and imposes strict time limits for all permitting in the state for covered projects.  It’s possible that it prevents ever increasing or changing regulatory standards for a covered project, even after it is constructed and is in operation.  And it will significantly weaken a range of substantive environmental protections in California, such as for endangered species habitat and cumulative air pollution.

Second, BACA will not just apply to clean energy, mass transit, and housing projects.  It applies to freeways and roads, to dams and irrigation projects, and to logging projects.  It may well cover any development project that eliminates natural habitat in California (on the grounds of reducing fire risk).  It may well include data centers.

Third, for all intents and purposes, BACA basically repeals CEQA for covered projects.  Proponents may be able to unilaterally limit the scope of CEQA review and determine what alternatives are to be considered.  CEQA loses any independent review or mitigation requirements, and simply becomes a checklist for compliance with other laws.  And judicial enforcement is sharply limited, even for compliance with those other laws.

Fourth, there is significant uncertainty about how BACA will work.  In particular, provisions of the initiative may cause it to be interpreted much more broadly than an initial read of the text indicates, and it overrides any conflicting laws.

Fifth, BACA will be extremely difficult to amend if it is enacted.  Any changes require a 2/3 majority in the state legislature.

Sixth, BACA does address some real concerns with how CEQA works, including the ability of project opponents to play Calvinball and develop new claims of harms that must be analyzed and mitigated, with moving targets for what alternatives should be assessed and what standards apply for mitigation.  I’ve outlined a range of reforms to CEQA that I think would address those concerns but with less collateral damage than BACA would produce.

Seventh, there are a number of constraints on how broadly BACA will be implemented in practice.  Union labor or prevailing wage requirements may limit how many projects use BACA (except for housing, which is exempt from those requirements).  Local zoning and planning rules in place at the time a project is proposed would also continue to restrict what is possible.

Eighth, BACA will probably undermine the planning process in California, and incentivize more piecemeal analysis and approval of individual projects, likely increasing the cumulative environmental impacts of development.

Finally, in particular BACA will likely contribute to eliminating most endangered species habitat protections in California, a state that claims to be an environmental leader.

BACA, CEQA, land use regulation, land-use law., Proposition 45