Proposed PRC Article 7, “Definitions,” Section 21028(m), defines an “essential project” as a project within one of eight defined categories identified below.

1. Essential broadband projects (Section 21028[i]) consisting of mass-market retail internet service, by wire, wireless, or radio, that can reach all or substantially all internet endpoints. Dial-up is excluded.
2. Essential education projects (Section 21028[c], [g], and [k]), including acquiring, building, expanding, renovating, or equipping property owned by a California educational institution; includes projects by school districts, county offices of education, charter schools, community college districts, the California State University system, the University of California system (including the Regents of the University of California), University of California Law San Francisco, and nonprofit colleges that belong to the Association of Independent California Colleges and Universities.
3. Essential clean energy projects that support the state’s climate or energy objectives (Section 21028[j]).
   • • Producing or storing renewable electricity, as well as associated transmission lines. Includes solar, wind, geothermal, fuel cells that meet California Air Resources Board emission standards, hydroelectric of 30 megawatts or less, digester gas, solid waste conversion, landfill gas, and ocean wave, thermal, or tidal energy.
     • Clean hydrogen that is not made from fossil fuels.
     • Microgrids as defined in subdivision (d) of Section 8370 of the Public Utilities Code.
     • Carbon capture, transport, and permanent storage, including from energy, manufacturing, and refining sources.
     • Transmission or distribution projects identified in the state grid operator’s (CAISO’s) transmission planning process or the state Integrated Energy Policy Report.
     • Nuclear power generation is expressly excluded.
4. Essential housing projects (Section 21028[l]).
   • • Residential-only projects.
     • Qualifying mixed-use projects as defined under PRC Section 21028(y).
     • Transitional housing, emergency shelters, and supportive housing as defined in Government Code Section 65582.
     • Farmworker housing as defined in subdivision (h) of Section 50199.7 of the Health and Safety Code.
     • Group living projects such as convents and monasteries.
     • Student housing.
     • Senior housing for people 55 and older. Includes residential care facilities for the elderly and continuing care retirement communities.
     • Subdivisions or common interest developments of homes or residential lots.
     • Conversions of existing commercial buildings to housing.
5. Essential public health projects (Section 21028[n], [w], and [x]) including medical treatment facilities or a medical office building.
6. Essential public safety projects (Section 21028[o], [t], and [ag]) consist of two types:
   • • First responder facilities: Fire stations run by the state, local agencies, joint powers authorities, special districts, or a consulting tribe, and local police or sheriff’s stations. Jail space is excluded, as are federal facilities, immigration detention facilities, and state prisons.
     • Wildfire risk reduction projects that reduce wildfire risks to residential and commercial structures. Examples include hardening or undergrounding power lines, roads and infrastructure, vegetation management, fuel reduction, fuel breaks, and access roads.
7. Essential transportation projects (Section 21028[p]), including projects eligible for state fuel-tax and vehicle-fee funding (streets, highways, and transit) and EV charging and refueling infrastructure. High-speed rail—the train system, corridors, usable segments, and any other part of the 2008 high-speed rail bond act—is excluded.
8. Essential water projects (Section 21028[q]) consist of building, expanding, repairing, replacing, or improving a public water system, systems that supply public water systems (directly or indirectly), and a system within the scope of the State’s Water Resilience Portfolio. Delta conveyance facilities are excluded.

In addition to these projects, proposed PRC Section 21028(m)(1)(B) states that an essential project also includes the related public, private, and utility infrastructure needed to serve it. That infrastructure covers anything required by a utility or agency or which is included in the application as part of the “whole of the project.” Examples include electric, telecom, gas, water, wastewater, stormwater, transit, police, fire, and transportation improvements.

Benefits and Challenges in Essential Project Definitions

While Article 7 clearly lays out broad classes of projects, there also is room for interpretation, both in the definitions of the classes and the infrastructure needed to serve them. Perhaps the largest focus leading up to the election has been on a currently unpopular type of project: data centers. Some groups have argued that Prop. 45 allows data centers under the broadband or infrastructure support provisions. These groups have used this argument to support a “no” vote on Prop. 45. Others (supporting “yes” on 45) have argued the definition of broadband is clear and does not include data centers. The nonpartisan Office of Legislative Counsel, whose attorneys advise state lawmakers, have opined that data centers are not included in the definition of broadband. Nevertheless, given the controversy surrounding this issue and the financial implications of this use, it is likely an issue that would be settled by the courts if the initiative passes.

Given the language of the proposition, infrastructure needed to serve an essential project may also include wind farms, wastewater treatment facilities, electric distribution lines, and highway capacity improvements, subject to the rules discussed in Article 7 of the initiative.

As a component of the initial screening process in Article 3, Prop. 45 lays out new provisions in PRC Section 21017 related to determining completeness of an application for essential projects. When a lead agency receives an initial application for an essential project, that agency will have 30 days to provide a written determination of completeness after the initial application or after any submittal of supplemental or revised applications (PRC Sections 21017[a][2] and [c][2]). If the lead agency finds the application incomplete, it must provide an “exhaustive written corrections list of items and specific information, or lack thereof,” that resulted in the finding of incompleteness. The applicant has up to 90 days to respond and can request an extension. After the exhaustive list is initially provided to the applicant, if multiple rounds of supplementation by the applicant are needed, the lead agency may not add new items to the initial list. If the lead agency fails to meet any of the 30-day review time frames, the application will be deemed complete for purposes of the essential project CEQA review (PRC Section 21017[c][4]).

Proposed PRC Section 21017 establishes restrictions regarding what a lead agency may ask of an applicant as part of the completeness review (PRC Section 21017[a][3]). The lead agency may only ask for information described in a written “submittal requirement checklist or similar document” publicly available at the time of application or in “statutes, regulations, rules, standards, or ordinances” that are existing laws at the time of the application. An application may not be deemed incomplete because of information beyond these two sources. If lead agencies do not have a written checklist of application requirements, they will only be able to request in applications the requirements of existing laws, as described in statutes, regulations, rules, standards, or ordinances.

An applicant has two recourses if they object to a determination of incompleteness. The applicant may appeal to the planning commission, planning director, or other official with final authority. The final written determination of the appeal must occur within 60 days or the application becomes automatically deemed complete (PRC Section 21017[d]). Within 90 days of the appeal conclusion, the applicant may also bring a civil lawsuit against the lead agency challenging an adverse appeal determination (PRC Section 21017[e]).

Benefits and Challenges of the Completeness Review Process

Comparing the time frames in Prop. 45 to existing law, primarily as defined by the Permit Streamlining Act (Government Code Section 65943), the limitations on application review time are substantially similar, such as a 30-day requirement for a lead agency to determine completeness of a submitted application or a 60-day period to respond to an applicant’s appeal of an incompleteness finding.

Benefits of the proposition’s completeness review process accrue primarily to an applicant in terms of greater certainty about information needed to achieve completeness and the explicit right to file litigation against a lead agency for an adverse finding after appeal. By prohibiting a finding of incompleteness based on any information beyond the “written, publicly available submittal requirement checklist or similar document” or requirements of existing law, a lead agency may not add requirements for other special or additional studies or analysis not included in those two sources. Similarly, if a lead agency is seeking information lacking from the application, after it provides an exhaustive, written list in response to the initial application, it may not add to that list in subsequent review of supplemental application information from the applicant. If an applicant believes an incompleteness appeal determination is not proper, there is an explicit opportunity to file a civil lawsuit against the lead agency.

While the time frames for review of an application or response to an applicant’s appeal of an incompleteness finding are not substantially different from the Permit Streamlining Act, Prop. 45 might prevent a lead agency from adding what it believes is a necessary additional (to what is required in the checklist) study for a peculiar environmental circumstance or in response to new information received during the preliminary scoping process. This provision could be considerably difficult for a complex project requiring review of multiple extensive applicant studies by different lead agency departments with limited staff. In addition, lead agency flexibility to seek important information not anticipated in its application content checklist would be eliminated, which could make it difficult to adequately assess an environmentally complex proposed project.

While not part of Prop. 45, essential projects also could take priority over nonessential projects in an agency’s project review queue. Due to litigation provisions in the proposition, limited staff resources would need to be focused on reviewing application materials for essential projects first and foremost, or risk litigation if deadlines are missed. This could create delays in the processing and approval of nonessential projects (e.g., commercial, industrial, or park projects).

Initial Practice Considerations for Completeness Review under Proposition 45

If Prop. 45 passes, recognizing it would go into effect as soon as the election is certified, lead agencies would need to quickly review their application guidance and checklist for application contents and then update and modify them for thoroughness or create new application materials for essential projects, if needed. If not already posted, the application checklist would need to be uploaded to an accessible place on the agency’s webpage or otherwise made publicly available.

Consideration may be given to updating and adopting a regulation or ordinance (depending on the level of government) to cover the environmental information needed in an essential project application that is tailored to the lead agency’s jurisdiction and geography, including special issues and handling of new information, so an existing law is established upon which to base completeness evaluations. In addition, a lead agency’s appeal process for completeness findings should be made clear in its application checklist guidance, including when to involve the agency’s counsel in the event of an appeal with an adverse outcome for an applicant.

Given the overall time limitations for completion of the CEQA process for essential projects (further discussed below)—365 business days for an EIR, 180 business days for a mitigated negative declaration (Article 4, PRC Section 21018)—lead agencies may need to require complete technical studies, like traffic studies, as part of the application checklist, with careful instructions to applicants discouraging project changes and other factors that could affect completeness of technical studies. Much like what has occurred in practice under NEPA’s tighter preparation timelines, it would not be surprising to see the need for substantially more application materials front-loaded in the application than prepared after project scoping, a dilemma when addressing public and agency concerns in the CEQA process.

Article 4 adds strict timelines for completing CEQA documentation for essential projects. Once the application is deemed complete (see above), a local lead agency must meet the following timelines:

• Environmental impact report. A lead agency must make a final determination whether to certify an EIR no later than 365 (business) days after the application was deemed complete. (PRC Section 21018[b])
• Mitigated negative declaration/negative declaration. A lead agency must make a final determination whether to adopt an MND or ND within 180 (business) days after the application was deemed complete. (PRC Section 21018[c])
• Exemption. A lead agency must make a final determination that a project is exempt from or already covered by another document under CEQA within 90 (business) days after the application was deemed complete. (PRC Section 21018[d])
• Timeline extensions. The deadlines described herein can be extended upon written request of the applicant (PRC Section 21018[e]) including if the applicant is also the lead agency. (PRC 21020[h])

Similar timelines apply to non-local lead agencies.

Many other timeline-related restrictions are included in the proposition. Some of the key considerations relate to public comments on essential projects (PRC Section 21021). EIRs would be limited to a 45-day public review period and MNDs/NDs to a 20-day public review period. The only comments included in the administrative record would include those received during this period or via oral testimony at a noticed and recorded public hearing, unless there are significant changes to the essential project, subject to certain qualifications. “All other public comments shall be disregarded and excluded from the administrative record,” (PRC Section 21021[d][2]) including those received within 48 hours prior to a public hearing or noticed decision.

Remedies are included for noncompliance with timeline requirements. An applicant may request that the agency hold a hearing on the project. Within 60 days of receiving the request, the lead agency shall complete all environmental review documentation “or assemble available environmental review documentation, including any applicant-prepared environmental review document as is allowed” pursuant to other elements of the Public Resources Code, and hold a hearing to make a final determination on the environmental document and the project (PRC Section 21020[b]). Other remedies are included in PRC Section 21020.

Benefits and Challenges of CEQA Time Limits

Prop. 45 tackles a key frustration surrounding CEQA compliance: time. It does so by imposing strict time frames for document completion and public comments. In particular with regard to public comments, it addresses what is commonly known as “late hits” by restricting the time frame and method by which public comments can be provided. It also alters the balance of power over project schedules by allowing only the applicant to extend the time limits surrounding document preparation.

There are also numerous potential challenges. The time frame for CEQA compliance is often affected by changes to a project after the analysis has been initiated, resulting in redoing and revising analyses. This frequent occurrence is not addressed in the initiative, although it is conceivable that a lead agency could consider the application “incomplete” if there are meaningful project changes, restarting the clock (Prop. 45 is silent on this). Complex projects often require more extensive study, and unless technical studies are included in the application (see discussion regarding completeness review), it may be difficult to complete studies in a manner that allows the deadlines in the initiative to be attained. Simple examples include biological studies requiring species surveys tied to certain seasons, traffic studies that could rely on the inclusion of school-year data, and groundwater studies based on full-year operations. Further, controversial projects may generate hundreds or thousands of public comments needing response. In the case of an EIR, 365 business days equals roughly a year and a half. EIR practitioners are aware of the extreme challenges imposed by these time frames, especially if an applicant does not grant an extension.

Initial Practice Considerations for Time Limits under Proposition 45

The time limit provisions under Prop. 45 may be the most daunting components of this initiative and may raise the most perplexing uncertainties—including potential outcomes if it is not possible to complete CEQA documentation as required.

Lead agencies will be under extreme time pressure for any projects that generate substantial public interest and/or that are complex. They should understand all phases of CEQA compliance and the time involved and may need to adjust internal review time frames and review rounds for administrative draft documents.

We have addressed the need for ordinances or other mechanisms to establish “objective” thresholds and conduct completeness review. Lead agencies may also consider when project changes trigger a new review for completeness, as well as other rules that could help facilitate compliance with the time limits.

Pursuant to Article 5, PRC Section 21024, Prop. 45 would create for qualifying essential projects an alternative scoping process to the notice of preparation and public scoping period in classic CEQA. The applicant may voluntarily choose to employ the preliminary scoping process. If the applicant does not choose this process, other scoping requirements of CEQA would continue to apply. The preliminary scoping process described in PRC Section 21024 must be completed in not more than 60 days.

An applicant would begin by providing written notice to the lead agency of its intent to complete the preliminary scoping process. The notice must present “a preliminary overview and description of the proposed essential project sufficient to inform the lead agency and the public of the anticipated features of the project.” Details like engineering plans, technical studies, or design drawings are not required. The written notice must include, to the extent known: (A) location, size, boundaries; (B) principal components and fundamental purpose; (C) general type of use, facility, infrastructure; (D) potentially affected resource areas; and (E) anticipated public agency permits or approvals. Beyond location, size, and boundaries; principal components; and type of use, facility, or infrastructure, other specifics about site plan, building height or mass, infrastructure dimensions, or other physical characteristics are not required.

After receiving the notice, the lead agency and the applicant are to hold at least two meetings to discuss the project and impacted resource areas. The lead agency will record all meetings. The lead agency must post the notice on a website so the public can submit comments by email. The applicant may, but need not, convene a public scoping meeting. The applicant must maintain a summary record of input but “shall not be required to respond to any input received.”

Benefits and Challenges of the Preliminary Scoping Provision

The benefit relates to improved efficiency of scoping with this process, in part because it focuses scoping deliberations between the applicant and the lead agency, including the need for at least two discussion meetings. Also, a maximum time frame is created for improved schedule certainty (no more than 60 days).

This process involves limitations compared with current CEQA requirements. CEQA scoping notifies and seeks important input about potential environmental effects to be studied from trustee and responsible agencies. In addition, it requires a scoping meeting for major projects (i.e., projects of statewide, regional, or areawide significance). A challenge of the preliminary scoping process is the loss of these important avenues of input about potential environmental impacts. Finally, with the allowance in this new preliminary scoping process that an applicant shall not be required to respond to scoping input, ambiguity may arise about how much the public input may ultimately influence environmental document contents. Nonetheless, applicants would be well advised to fully consider public input.

Initial Practice Considerations for Scoping under Proposition 45

Initial practice recommendations for scoping under Prop. 45 include seeking an applicant’s decision about its process choice as early as possible, determining if some other form of consultation with trustee and responsible agencies is needed, and reserving one of the applicant/lead agency meetings to consider public input and agree on environmental document contents at the end of the up-to-60-day scoping period.

Currently, the determination of significance of environmental impacts under CEQA involves the use of quantitative thresholds (e.g., vehicle miles traveled, pounds per day of specified air emissions, exceedance of a certain decibel level) and qualitative thresholds (e.g., conflict with existing zoning for agricultural use, exposure to noxious odors, interfere substantially with sensitive species migratory corridors, physically divide a community, expose people to significant wildfire risks). Determination of significance is based on substantial evidence provided via technical expertise, modeling, field observations, and other sources.

Under proposed PRC Section 21022(a)(1), a public agency considering an essential project must “identify, evaluate, determine significance, and mitigate the impacts of an essential project based on compliance with existing laws.”

“Existing laws” is defined under proposed PRC Section 21028(r):

• Laws in effect when the application is filed. These are “formally adopted legal requirements contained in statutes, regulations, rules, standards, or ordinances” in effect on the date the application was submitted. This definition effectively freezes the standards as of that date.
• An exception for later life-safety rules. A later-adopted requirement can apply only if the lead agency finds compliance is needed to address a “specific, adverse life-safety impact.” That means a “significant, quantifiable, direct, and unavoidable” impact, based on “objective, identified and written public safety standards.”
• Building code updates. Updates to the California Building Standards Code, including the Fire Code, apply if they take effect before that same cutoff.

Under proposed PRC Section 21022(a)(2), an agency may have “published, adopted, or routinely used” thresholds of significance prior to the submittal of an essential project reapplication or application. This section allows the applicant to elect to vest into these thresholds. Proposed PRC Section 21022(c) also allows the applicant to waive the above requirements in writing.

Benefits and Challenges for Impact Analysis

By limiting impact determinations to compliance with existing laws, interpretations of significance are largely limited. Issues that typically require professional judgment, such as whether a scenic vista is significantly affected or groundwater overdraft is substantial, either would need to be compared to objective legal standards where they can be created or seemingly would not be evaluated for significance.

With this limitation, which is seemingly beneficial in terms of certainty in impact determinations, a number of challenges are raised. Only a limited number of agencies have formally adopted CEQA thresholds of significance that are based on existing laws as proposed under Prop. 45. Typically, agencies use PRC Section 21083(b), State CEQA Guidelines Section 15065, State CEQA Guidelines Appendix G, recommended thresholds from agencies (e.g., air districts), or recommendations of experts based on substantial evidence. In some cases, customized thresholds of significance are also created by agencies to address environmental impacts unique to the project under evaluation.

The proposed provisions under PRC Section 21022(a)(2), in combination with PRC Section 21029, may make difficult impact determinations for certain topics, including aesthetics, agricultural resources, biological resources, cultural resources, energy, land use and planning, recreation, and wildfire, that are not easily addressed through existing laws.

Although the CEQA statute and the State CEQA Guidelines would meet the definition of an existing law under PRC Section 21028(r), the use of, for example, responses to Appendix G (Initial Study checklist) to determine significance may not be appropriate when they involve qualitative thresholds (even when supported by substantial evidence), such as if a project like a large transmission line would substantially affect a scenic vista. Such a determination may involve judgment and therefore not meet the definition of existing laws under proposed PRC Section 21028(r). In addition, recommended thresholds that are not formally adopted but are based on objective standards (e.g., numeric thresholds involving air pollution provided by air districts) may also not meet the definition of an existing law under PRC Section 21028(r).

Initial Practice Considerations for Impact Significance Determination under Proposition 45

One option is that agencies could formally adopt thresholds of significance for essential projects that meet the requirements of proposed PRC Section 21022(a)(2) and PRC Section 21029. However, formal adoption may be a lengthy process and would not likely be in place in time to address essential project applications that could be submitted immediately after November 3, 2026, should Prop. 45 be approved by the voters.

CEQA generally requires a lead agency to prepare an EIR whenever substantial evidence supports a fair argument that a project may have a significant effect on the environment, even if other substantial evidence supports a contrary conclusion (State CEQA Guidelines Section 15064[f][1]). The fair argument standard is one of CEQA’s defining features because it sets a comparatively low threshold for requiring an EIR.

Prop. 45 substantially narrows judicial review of CEQA challenges to essential projects. Proposed Article 6, PRC Section 21026, lays out judicial review of essential project approvals. This section applies to all essential projects and provides that “a petitioner’s claims shall be limited to a public agency’s noncompliance with objective existing laws, and the scope of the court’s review shall be limited to whether the approval or authorization complies with objective existing laws,” and “for the purpose of this subdivision, ‘objective’ means involving no personal or subjective judgment and being uniformly verifiable by reference to an external and uniform benchmark or criterion available and knowable by both the applicant and the public agency before the application was submitted.” These provisions apply to EIRs and MNDs alike, raising the standards needed to overturn approval of these documents.

Benefits and Challenges of the Standard of Review Provision

The fair argument standard has long been a target of CEQA reform advocates because it sets a low bar for requiring an EIR, which is CEQA’s most comprehensive, time-consuming, and costly level of review. For the same reason, environmental advocates regard it as one of the most important tools for ensuring full analysis and disclosure before project approval. The fair argument standard has been well known for its ability to empower petitioners, whether an environmental or neighborhood group challenging an adjacent development, or a labor union or other economic interest using CEQA for leverage.

Prop. 45 eliminates the fair argument standard applied to adequacy of MNDs and places them on equal footing with EIRs. Further, by limiting review of either MNDs or EIRs to “noncompliance with objective existing laws,” litigation risk would be substantially reduced.

The challenges associated with the changes in standard of review reflect those discussed above for the “determination of significance” in that challenges may arise around both the need to adopt thresholds that conform to the initiative’s definition of existing laws and how such laws can or would be drafted to address issues typically more subjective or not based on such laws (like aesthetics, several biological resource issues, historic resources, etc.). Presumably, if no objective existing laws address these traditional CEQA issue areas, the analysis of them would not be subject to litigation challenge.

Initial Practice Considerations of the Standard of Review Provision under Proposition 45

If enacted, Prop. 45 could give lead agencies and applicants greater confidence in relying on NDs and MNDs for essential projects. Combined with the proposition’s shortened review timelines, abbreviated public comment periods, and accelerated judicial review, significant time and cost savings could result.

The same considerations for “determination of significance” surrounding the need for lead agencies to adopt standards of significance apply here.

CEQA currently requires an EIR to evaluate a range of reasonable alternatives, including a mandatory no project alternative (State CEQA Guidelines Section 15126.6). The purpose is to identify feasible alternatives that would avoid or substantially lessen significant impacts while attaining most of the project’s basic objectives. This provision gives decision-makers options and lets them compare environmental tradeoffs.

Proposed Article 5, PRC Section 21025, allows a restriction on the range of alternatives. An applicant may voluntarily elect to use the preliminary scoping process (see prior discussion of this topic, above), which includes a streamlined alternatives analysis. PRC Section 21025 permits an applicant to develop a singular alternative to the project, subject to lead agency review and comment, that is presumed to lessen impacts. The applicant’s alternative thus becomes the only alternative, aside from the “no project” alternative, the EIR can evaluate—unless the applicant proposes additional alternatives for consideration.

The alternative must take into consideration input received during preliminary scoping and be compatible with the project’s “fundamental purpose.” To the extent practicable, it must also be compatible with applicable local zoning and land use policies. The alternative need not be located on a different site (proposed PRC Section 21025[a]). It may also include different or additional components than the proposed project. Such components may consist of on- or off-site physical improvements, or alternative operational parameters or programs designed to lessen impacts (proposed PRC Section 21025[b][2][B]). Prop. 45 does not define “fundamental purpose” or explain how that concept relates to CEQA’s well-developed framework for project objectives. It also allows applicants to propose additional alternatives at their discretion (proposed PRC Section 21025[f]). However, Prop. 45 offers little guidance on how those alternatives would fit into a process otherwise built around a single applicant alternative and the no project alternative.

The lead agency must certify whether the alternative meets the requirements of Article 5 after the applicant transmits the project alternative and no project alternative. The lead agency’s discretion regarding consideration of the alternatives appears limited to certification (see above). Prop. 45 does not address circumstances where the lead agency concludes the alternative(s) do not meet the requirements of Article 5.

Benefits and Challenges of the Alternatives Provision

The benefits of the alternatives provision are less obvious than those of the initiative’s other streamlining provisions. Developing a reasonable range of alternatives takes time. Alternatives are also best formulated once the analysis has progressed far enough to identify the significant impacts they are meant to address, and it may therefore be difficult to propose feasible alternatives that reduce significant effects during a preliminary process. Prop. 45 does attempt to address some challenges with the current CEQA process. For instance, the State CEQA Guidelines require evaluation of a reasonable range of alternatives but do not define what should be considered a reasonable range. Lead agencies thus sometimes require consideration of five to ten-plus alternatives, which can add time and cost to an EIR. However, while more certainty is provided by placing limits on the number of alternatives, this provision places responsibility for developing the alternative in the hands of the party with an economic interest in project approval rather than the entity, the lead agency, that is charged with reducing the significant effects of a project via mitigation or alternatives. Under the streamlined process, both the proposed alternative and the no project alternative would largely be developed before the environmental analysis has proceeded past scoping. A project’s significant impacts may not be well understood within 15 days after scoping closes. As a result, alternatives may have to be formulated before the issues they are meant to address have been fully identified.

Prop. 45 also says little about the lead agency’s discretion once the applicant submits its alternatives. Can a lead agency require substantial revisions if the proposed alternative does not meaningfully reduce significant impacts? Can it reject the applicant’s description of the no project alternative if it believes reasonably foreseeable conditions would differ materially? Beyond noting that the lead agency must certify that the applicant has met the procedural requirements of Article 5, the initiative does not address these questions.

Initial Practice Considerations for Alternatives under Proposition 45

Lead agencies may want to develop a clear set of criteria they expect in alternatives to the project, including substantial evidence to support the criteria (such as impact reduction) so that applicants have sufficient guidance to successfully achieve the alternatives certification. Lead agencies may also consider requiring an applicant to submit a preliminary assessment of potential alternatives as part of the application process.

In Article 3, PRC Section 21016, the initiative describes an alternative process of tribal consultation for qualifying essential projects. All essential projects must follow the alternative tribal consultation process if they use the Prop. 45 streamlining provisions, per PRC Section 21015(d)(1).

The tribal consultation process pertains to consultation with “consulting tribes,” which are defined as tribes appearing on the most recent list of Federally Recognized Indian Tribes that are traditionally and culturally affiliated with the geographic area of the proposed essential project (PRC Section 21028[e][1]). Also, for essential projects using this process, the definition of “California Native American tribe,” as used in all other sections of CEQA, is changed to “consulting tribes,” per PRC Section 21028(e)(2). As a result, Prop. 45 replaces the Assembly Bill 52 (PRC Section 21080.3.1 et seq.) consultation process for essential projects, and California tribes not listed by the federal government are ineligible for the PRC Section 21016 consultation process.

The applicant starts the process by submitting project information to the lead agency and beginning an initial screening process, separate from (but presumably concurrent with) the preliminary scoping process. The lead agency is to complete a records search within 20 days of receipt of the project information, including the NAHC Sacred Lands File, California’s regional information center, and lead agency records. The lead agency must provide the project information and records search results to any consulting tribe with an invitation to “meet and confer.” If a consulting tribe does not respond to the invitation within 30 days, the initial screening process will be deemed complete. If tribal consultation is initiated, it is to follow the AB 52 process, with several modifications, including (1) only federally recognized tribes may consult; (2) measures to avoid or mitigate a significant impact to tribal cultural resources must be agreed in writing between the lead agency, the tribe, and the applicant; and (3) a lead agency may approve a project if tribal consultation has ended in good faith, agreed upon mitigation is adopted as a project condition, and infeasibility to avoid and preserve in place is documented with substantial evidence.

Benefits and Challenges of the Essential Project Tribal Consultation Process

Prop. 45’s tribal consultation process generally benefits the applicant through shorter time frames to complete consultation and the lead agency through control of process features. The lead agency produces the records search, which must occur in a 20-day period after receiving project information, faster than traditional records searches. The process assigns discretion to the lead agency to decide whether or not to use tribal methods and standards or traditional knowledge, with an explanation of its decision if it declines. The applicant also has more assigned authority to approve in writing mitigation measures resulting from consultation, along with a tribe and the lead agency.

The primary challenge relates to the exclusion of California Native American tribes recognized by the state but not by the federal government. A comparison of the Native American Heritage Commission’s list of California tribes and the federally recognized list confirms that approximately 60 tribes now able to consult under the AB 52 process lack federal recognition; these California tribes would not qualify for Prop. 45’s tribal consultation process. Also, compliance with the 20-day time frame for provision of a records search would be very difficult and likely often infeasible for smaller lead agencies without the availability of a professional archaeologist.

Initial Practice Considerations for Tribal Consultation under Proposition 45

AB 52 has benefited from a sufficiently prescribed process with action steps, templates of consultation tools, and tribal communication protocols that are well known and documented. Practitioners, lead agencies, the Native American Heritage Commission, and tribal representatives would need to quickly modify procedural guidance and templates to tailor them to the proposition’s process. Also, lead agencies need to determine how to expedite the records search process to meet the 20-day deadline. Finally, the state may need to consider how to address the needs of California tribes that qualify for AB 52 but are no longer eligible for Prop. 45’s tribal consultation process.