county board

When a county judge put the brakes on what would be the largest data center in California, ruling the whole project needed extensive environmental review, Kristian Salgado was relieved.

The community organizer lives in Imperial County, where the nearly one-million-square-foot facility was proposed. The rural county near the Mexico border struggles with bad air pollution and has one the state’s highest rates of asthma hospitalization for kids, according to the National Institute of Environmental Health Sciences. One of Salgado’s nephews lives right next to the site and struggles with the respiratory disease.

“It just seemed very unusual that a project of this scale, with that many backup generators could be permitted without requiring any further [analysis] of what that would mean for residents,” she said.

Now, Salgado and others who share her concern believe Proposition 45 on the November ballot could roll back their wins. The initiative changes the California Environmental Quality Act, or CEQA, a law intended to inform decision makers and the public about a project’s possible environmental impacts — and mitigate them to the extent possible.

Supporters say Prop 45 will speed up environmental review for essential housing, transportation, water, health, education and other projects, cutting costly delays and passing the savings on to consumers. Opponents say it not only weakens environmental protections for many developments, but will cover potentially polluting ones — including data centers. The Yes on 45 campaign forcefully rejects the data center claim, but independent legal experts are divided.

At the heart of the debate is the definition of one of the categories covered by Prop 45: “broadband internet access projects” or “mass-market retail service … that provides the capability to transmit data to, and receive data from, all or substantially all internet endpoints.”

Dan Dunmoyer, president and chief executive of the California Building Industry Assn., which supports the proposition, was adamant: “We specifically excluded data centers” when crafting the measure.

Yet the proposition expressly names certain excluded projects: nuclear energy, high-speed rail, jails and Delta conveyance facilities. Data centers aren’t among them.

Dunmoyer maintains that even if they’re not explicitly listed, data centers just don’t fit the measure’s definition.

In a Daily Journal op-ed, Rachelle Chong, a former Federal Communications Commission member, similarly argues that the definition refers to internet access bought from a provider like AT&T or Comcast. “A conventional data center ordinarily performs an entirely different function,” she wrote, arguing data centers aren’t in play.

But land use attorneys Matthew McKerley and Richard Frank, in another op-ed, say many modern data centers fit the bill because they house equipment used to transmit consumer data to and from the internet.

They also highlight conspicuous campaign finance contributions, including $250,000 from Prologis, which developed two data centers in San Jose.

Ethan Elkind, director of the climate program at UC Berkeley Law, said data centers will argue they fit the definition — and then it will be up to the courts to decide.

“Anyone telling you that it’s definitely not going to be data centers, they cannot read the future,” he said. “The way they’ve written the language, they can’t provide 100% assurance.”

Eric Biber, a UC Berkeley law school professor with expertise in environmental law, pointed to language in the measure requiring it to be interpreted broadly “to afford the fullest possible weight to the interest of, and the approval and realization of, essential projects.” In a blog post, he called it “a thumb on the scale” that could lead courts to conclude that projects should be covered when their eligibility is in doubt.

But Ryan Thomason and J. Scott Miller, partners at the law firm Mitchell Chadwick with CEQA expertise, think it’s likely courts would rule otherwise. In an article, they note that the definition used in the measure hews closely to another section of California law, which distinguishes providing internet services from offering content, services and applications online. “Courts generally interpret identical language in related statutes to have the same meaning,” they write.

Dunmoyer, of the California Building Industry Ass., stressed that the measure doesn’t overthrow local zoning rules.

Opponents are “making it sound like in your backyard will be a data center,” he said. “Well, that doesn’t happen at all by this initiative. That has to happen by a county board of supervisors voting to put a data center in your backyard. And if they decide to do that, this initiative does nothing to expedite that CEQA review.”

But what if local officials run afoul of their constituents? In the case of the Imperial Valley Data Center Campus, the roughly 75 acres of unincorporated land where it would go had already been zoned for data centers. As a result, county officials said they had the power to move forward with the facility for artificial intelligence computing infrastructure without city approval.

They granted the project an exemption from the state environmental review.

Then came the backlash. Residents spoke out at public meetings, rallied on the streets, circulated a petition and formed a community organization. The city of Imperial and the Sierra Club sued. In the wake of the outrage, the county walked back its decision, declaring a moratorium on data centers. (The developer sued the county over the ban, and the county recently rescinded it following a court order.)

If Prop 45 passes — and data centers are covered by it — Eric Biber, of UC Berkeley Law, told The Times that such a moratorium wouldn’t be possible. That’s because the measure prevents state and local officials from changing the rules for a project once its application is submitted, he said. So if a community didn’t have a moratorium in place and its zoning laws allow a data center, “They’re done,” said. Existing bans aren’t expected to be affected.

Attorneys for the No on Prop 45 campaign argue that it could have real-world impacts for the Imperial Valley facility, saying the developer could claim the new rules apply. For instance, the measure would prevent courts from overturning approvals of qualifying projects because of CEQA violations. Courts would only be able to halt the affected portion of the project while the issue is fixed.

Sebastian Rucci, principal developer of the Imperial Valley data center, said he will fight for his project to move forward and that there’s an environmentally sound way to do it. He said he’s willing to negotiate and mitigate where necessary — but will not go through the CEQA process. If push comes to shove, he said he’ll move the project elsewhere. California could “get in the game” or be left in the dust, he said.

Imperial Valley Computer Manufacturing, the company behind the project, says it will create at least 100 permanent jobs and generate $28.7 million in annual property tax revenue.

CEQA requirements “are not about the environment,” Rucci said. “They may be for some, but they’re not for many. For many, they are about killing things.”

The California Supreme Court excoriated Riverside County Sheriff Chad Bianco over his seizure of hundreds of thousands of Proposition 50 ballots earlier this year, ordering the former gubernatorial candidate to immediately hand over all remaining material in a pair of scathing decisions on Thursday.

“We hold that the seizure of the ballots was unlawful,” wrote Chief Justice Patricia Guerrero. “While allegations of election improprieties are a very serious matter, our Elections Code contains numerous established mechanisms for investigating and proving misconduct that do not compromise the integrity of voted ballots — contrary to the means employed here.”

The ruling comes less than two weeks before Californians will start casting ballots in the race for governor and a handful of hotly contested congressional midterms — nationally watched elections that would be vulnerable to similar interference unless the court gave clear orders, advocates warned at oral arguments last month.

“It’s bound to be repeated again,” said Chad W. Dunn of the UCLA Voting Rights Project, which led the first of two election interference suits against Bianco, a popular MAGA personality and former Republican candidate for governor.

Bianco has long flirted with President Trump’s election fraud conspiracy movement. Though the ballot seizures in February were widely seen as a campaign stunt, the legal theory behind them — that local lawmen can commandeer voter materials from elections officials, and that sheriffs are unanswerable to officials who outrank them, including attorneys general — belongs to a larger “constitutional sheriffs” ideology.

California‘s seven Supreme Court justices appeared by turns perplexed by and incredulous of those theories during oral arguments last month.

“You are walking into a very dense thicket of very specific laws that govern elections in particular and I think it’s a very established cannon of interpretation that the specific trumps the general,” Justice Goodwin H. Liu said.

The ballot battle emerged from a Riverside County pilot program meant to boost voter confidence, a handwritten tally that ultimately fell about 46,000 votes short of the official count, sparking claims of fraud.

Riverside County Registrar of Voters Art Tinoco met with the county board of supervisors and the citizens’ group behind the claim and carefully explained how the discrepancy emerged. Yet, Bianco pursued warrants to seize more than 650,000 ballots, alleging they were evidence in an investigation of wide-ranging election fraud.

When he learned of the warrants, California Atty. Gen. Rob Bonta ordered Bianco to stand down. Instead, the sheriff accelerated his plans, dispatching armed deputies from Riverside County’s Special Investigations Bureau, Emergency Response Team and SWAT unit to sweep up the votes.

Later, Bianco directed his underlings to begin counting those ballots by hand — a potential felony under state law, which forbids anyone other than an election official from so much as touching a ballot container.

When Bonta again ordered him to stop, Bianco argued the attorney general had no authority to command him, later claiming in court that the law conferred only an “advise and consent” role.

In fact, California courts have spent more than a century delineating power between the state’s attorney general and local sheriffs and prosecutors. Voters took the matter a step further in 1934, endorsing a ballot initiative that clearly named the attorney general as California’s top law enforcement official, and put the state’s other lawmen beneath him.

In a footnote, justices also took a swipe at Bianco’s initial effort to have the case tossed for lack of standing — a move apparently undertaken on the legal advice of an elaborate artificial intelligence hallucination.

“In his preliminary briefing, Bianco challenged petitioners’ standing based on misquoted passages from, and an incorrect recitation of our holding in, Common Cause v. Board of Supervisors,” Guerrero wrote. “We disapprove of the improper use of artificial intelligence tools, which apparently contributed to the significant error that occurred here and remind counsel of attorneys’ professional duties of competence and candor to the court.”