Building an Affordable California – but at what cost?

Contributed by Cheryl DeGano, Environmental Services Practice Area Leader

As you may recall from our November article, on June 30, 2025, Governor Gavin Newsom signed two budget trailer bills into law – Assembly Bill (AB) 130 and Senate Bill (SB) 131. These bills continued the trajectory toward modernizing or streamlining the California Environmental Quality Act (CEQA) begun under the Schwarzenegger and Brown administrations by introducing new housing exemptions. And while these two bills were the most consequential revisions to CEQA in recent history, they fell short of the sweeping CEQA reform that has been the topic of discussion for decades.

On November 24, 2025, while clean-up legislation to AB 130 and SB 131 is in the works, the California Chamber of Commerce filed a ballot initiative to modernize and streamline the review process for building the state’s most essential projects. This proposed initiative, seductively named Building an Affordable California Act (BACA), proposes to amend CEQA, some may say gut CEQA, by creating a new CEQA process for essential projects by adding new Sections 21010 through 21034 to Division 13 of the Public Resources Code (CEQA Statute).

What is an essential project?

BACA would be applicable to essential housing projects, essential clean energy projects, essential public health projects, essential public safety projects, essential broadband internet access projects, essential education facility projects, and essential transportation projects. The definition for each of these essential projects is set forth in proposed Section 21028.

An essential project includes all related and ancillary public, private, and utility infrastructure and public service facilities required by a utility or public agency, or included in an essential project application as part of the “whole of the project” to serve… [the essential project], such as electric, telecommunication, gas, water, wastewater, stormwater, transit, police, fire, and transportation improvements that provide required public and utility service and infrastructure to the project. (Proposed Section 21028(m)(B).)

Additionally, as with AB 130 and SB 131, certain types of essential projects have labor requirements.

The frustration and contempt the BACA drafters have for electeds, public agencies, agency policies, procedures, and the hardworking Californians that staff these agencies, not to mention individuals or groups that may oppose a development proposal, is evident in the Findings and Declarations outlined in proposed Section 21011(a), which states in part, California’s outdated system for approving essential projects is too slow, too bureaucratic, and too costly. Essential projects such as clean water, clean energy, hospitals, affordable housing, roads, wildfire prevention, public safety, and other infrastructure improvements are being delayed or blocked entirely by unnecessary red tape, bureaucratic delays, and excessive litigation. The Findings and Declarations further state that California’s permitting laws were written before today’s modern environmental laws were in place, resulting in an outdated system that undermines the state’s environmental and public health goals by slowing or blocking essential projects. (Proposed Section 21011(c).)

As drafted, BACA purports to modernize and streamline state law to cut bureaucratic red tape and unnecessary delays; limit frivolous lawsuits that block essential projects while allowing public agencies and essential project applicants to continue sharing the burden of defending against such suits; speed up delivery of projects Californians rely on every day. (Proposed Section 21011(d).) As BACA asserts, delay means Californians wait longer and pay more for essential projects. BACA seeks to reduce delay and provide some level of certainty.

Before we delve into some of BACA’s specific proposals, there are a few overarching things to keep in mind about this initiative that are of concern, at least to WEBB’s CEQA Practitioners.

• BACA is to be broadly interpreted in favor of an essential project. Although BACA states it does not diminish the authority of any public agency to approve or disapprove an essential project and that no outcomes of any proposed essential project are preordained (proposed Section 21014(a); this is in contrast with proposed Section 21029(a), which states (emphasis added), It is the policy of the people of the state of California that this chapter should be interpreted and implemented to afford the fullest possible weight to the interest of, and the approval and realization of, essential projects. Keep this in mind. The end goal of BACA is the approval of essential projects, not public disclosure and feasible mitigation of potentially significant environmental impacts. This is at odds with the main purpose and intent of CEQA. Additionally, any ambiguity in BACA’s language is to be interpreted in favor of approving essential projects. We expect this difference between the overall Statute and CEQA case law, focused on minimizing and mitigating impacts, will cause major delays and additional lawsuits brought against public agencies approving projects without regard for environmental effects.
• The definition of what constitutes an essential project is very broad and may include significant off-site improvements and/or facilities. (See What is an essential project?)
• In the event of a conflict between BACA and any other law, BACA shall be controlling. (Proposed Section 21014(d)(e)(1).) This calls into question other environmental laws that intersect with the CEQA process, such as the Clean Water Act, Clean Air Act, Endangered Species Act, etc.
• The legislature can only amend BACA with a two-thirds vote. This will make it difficult for the legislature to respond to drafting errors, provide clarifications, or respond to changed economic, social, or ecological conditions or public policy.
• Not all of BACA’s proposals are new. For example, BACA includes a definition of impacts for essential projects that basically states that if an essential project is consistent with existing law, its impacts are less than significant. The concept of simply confirming that a proposed project is not in violation of existing law and that no further analysis is required has been part of unsuccessful prior efforts by certain legislators to amend CEQA.
• BACA limits the analysis in a CEQA document for an essential project and limits the scope of judicial review. At best, this dilutes the core purpose of CEQA, which is to analyze, publicly disclose, and mitigate, to the extent feasible, significant environmental impacts. At worst, it limits the scope of analysis such that potentially significant impacts may not even be disclosed, much less mitigated.
• BACA presumes the essential project applicant knows best. Not agency staff, not subject-matter experts, certainly not electeds, the courts, or the public.

This article provides a high-level overview of some of BACA’s proposals intended to modernize and streamline the CEQA process.

The Essential Project Applicant Knows Best: Applicant-Initiated Tribal Consultation, Optional Applicant-Initiated Preliminary Scoping and Streamlined Alternatives Analysis

Per AB52, CEQA requires consultation with California Native American Tribes traditionally and culturally affiliated with a geographic area in which a proposed project would be located, for all projects for which a negative declaration (ND), mitigated negative declaration (MND), or environmental impact report (EIR) will be prepared. This government-to-government consultation is initiated by the CEQA lead agency after an application is submitted.

BACA proposes two things that would change the current process for essential projects: limiting the tribes that participate in consultation and imposing an applicant-initiated preliminary tribal engagement process. BACA would limit the tribes that could participate in this consultation process by only allowing participation of a Consulting Tribe(s) (as defined in proposed Section 21028(e)(1)). This would foreclose any non-federally recognized Native American Tribes from participating in the consultation process, regardless of their affiliation with an essential project area.

BACA also requires applicant-initiated preliminary tribal engagement before submitting an application for an essential project. Under BACA, the applicant and Consulting Tribe shall participate in an informal engagement process to discuss the proposed essential project, potential alternatives, and potential impacts on tribal cultural resources. The applicant maintains a written record, which is submitted with the application. Given the sensitive and confidential nature of Native American resources, it is hard to imagine the value this additional effort would bring. Additionally, project alternatives, per CEQA Guidelines section 15126.6(a), are intended to avoid or substantially lessen any of the significant effects of the project. Developing essential project alternatives before submitting an application and completing some environmental analysis is too early in the process to develop a range of meaningful alternatives. BACA does not require an EIR for an essential project to evaluate more than a single applicant-selected alternative and a no-project alternative.

BACA includes an optional preliminary-scoping process, a streamlined alternatives analysis that an essential project applicant may elect to use. This process requires the applicant to provide the agency with written notice of their intent to use this process, along with a preliminary essential project overview and description. Within 60 days after receipt of the written notice, the lead agency and the essential project must meet at least twice to discuss the proposed essential project, potential alternatives, and identify potential impacted resource areas. The lead agency must post the written notice on its website and provide contact information for the public to email comments to the essential project applicant. The essential project applicant may convene a public meeting or workshop and is under no obligation to respond to any input received from the lead agency or the public. (Proposed Section 21024.)

Upon completion of the scoping process, the applicant shall develop one proposed alternative to the essential project. If an essential project applicant avails themselves of this option, the analysis in the essential project’s EIR is limited to the proposed essential project, the applicant’s proposed alternative, and the “no project” alternative. This does not streamline the alternatives analysis. This is eliminating an evaluation of a range of feasible alternatives that may include one or more alternatives that the essential project applicant does not want evaluated. (Proposed Section 21025.)

Determining Completeness of Essential Project Applications (proposed Section 21017)

BACA also provides deadlines for which an application must be deemed complete, limits the criteria that a local agency can use to deem an application incomplete, and limits the agency’s comments on resubmittals to only the newly submitted information. That is, if an agency misses a comment on the original submittal, they have lost the opportunity to comment on that item in any resubmittals. As consultants, we would all like the review comments we get from agencies on our submittals to be complete on the first pass, and not to have something new come up on a second or third resubmittal. We would also like all agency reviews to be completed in a timely manner so we can better control the project schedule.

The BACA-proposed process places a burden on both agency staff and the essential project applicant, as there are deadlines that apply to both parties. Further, BACA does not include any funding provision to add agency staff to meet its prescribed deadlines. This process, which is summarized below, is outlined in proposed Section 21017.

• Within 30 days of receipt of an initial application for an essential project, the public agency shall provide an exhaustive written corrections list of the items and specific information, or lack thereof, that led to the finding of incompleteness; otherwise, the application is deemed complete, and the agency may not request any additional information. An application shall not be determined to be incomplete based on items not required per a written, publicly available submittal requirement checklist at the time the application was submitted or anything that was not existing law at the time of the initial application.
• An essential project applicant has 90 days after receipt of the agency’s corrections list to submit additional information or a revised application that addresses the missing information, or, if additional time is needed, provide a written explanation to the agency along with an estimated date of the resubmittal.
• The public agency has 30 days to review the supplemental submittal and either determine the application is complete or provide the applicant with a corrections list of missing information. This process continues until the application is deemed complete or the applicant appeals the determination of completeness.
• Within 60 days of receipt of an appeal to a completeness determination, the agency must provide a written determination on the appeal, otherwise the application is deemed complete.
• An applicant has 90 days after receiving a completeness determination to bring civil action challenging that determination.

Local Agency and Non-Local Agency Timeline for Completing CEQA Review of Essential Projects (proposed Sections 21018 and 21019)

BACA sets forth timelines by which a lead agency must complete CEQA for essential projects. Keep in mind when reviewing these timelines, that prior to a CEQA document being ready for consideration by a lead agency, the entire CEQA process must be complete, that is the document completed and circulated for public comment, responses to comments prepared, staff reports prepared, and, in most cases, the essential project agendized for consideration by a commission, council, and/or board, or in some jurisdictions for some essential projects, a commission and council/board. BACA did nothing to eliminate any of these processes, nor did they take them into consideration with their proposed timelines.

• Within 30 days of the essential project application being deemed complete pursuant to BACA or any other law, the CEQA lead agency shall determine if an environmental impact report (EIR), negative declaration (ND), or mitigated negative declaration (MND) is required.
• If an EIR is required, the lead agency must make a final determination whether to certify an EIR no later than 365 days after the essential project application is deemed complete.
• If an ND or MND is required, the lead agency must make a final determination whether to adopt an ND or MND no later than 180 days after the essential project application is deemed complete.
• For any other environmental review documentation for an essential project, within no later than 90 days after the essential project application is deemed complete, the lead agency shall make a final determination that the essential project is exempt from BACA or the essential project impacts were previously evaluated in a prior CEQA document (e.g., previous EIR, ND, MND, or Addendum).

The above deadlines shall be extended upon the written request of an essential project applicant.

If the above deadlines are not met, the essential project applicant may request (in writing) that the agency hold a meeting or hearing on the essential project. Within 60 days after receipt of this request, the lead agency shall complete all environmental review documentation and hold a meeting or hearing on the essential project application, unless the agency completes all environmental documentation and issues a final written determination to approve the essential project.

None of us like projects and reviews that seem to drag on endlessly; however, with existing agency staffing levels, these deadlines may be unachievable. Particularly if an essential project requires a focused biological resources survey, which may only be completed during certain times of the year.

Timeline for Public Comments on Essential Projects (proposed Section 21021)

BACA prohibits the extension of the public comment period for an essential project, except by a court of competent jurisdiction. This means that if a concerned group of citizens, an appointed or elected official, or another public agency requests additional public review time, the lead agency may not approve that request.

BACA also requires that if a public hearing on an essential project is continued, said continuance must be to a specific date, that is, not taken off the calendar, and upon approval of the continuance, the public comment period is closed and may not be reopened. (Proposed Section 21021(c).)

Judicial Review of Essential Project Approvals or Authorizations

BACA addresses this long-standing criticism by limiting a petitioner’s claim on an essential project to a public agency’s non-compliance with objective existing laws. BACA further limits the scope of the court’s review to whether the approval complies with existing objective laws. 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.

Even if courts find a violation of CEQA, the new judicial review provisions only allow courts to issue an order prohibiting commencement of the specific part of the overall essential project that resulted in the violation; the rest of the project can proceed. (Proposed new Section 21027(c).) An injunction against an entire essential project that is under construction can only be issued if there is “a showing by clear and convincing evidence that an essential project would have a specific, adverse impact upon public safety, and there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact upon public safety.”

This provision means that environmental, cultural, visual, and biological resources that may be important to a community will no longer have protection from project approvals under BACA. The ability to not allow all the factors being impacted by projects takes the control out of communities to decide what they think is important to protect or not.

BACA Gets Some Stuff Right

Not everything in BACA subverts or dilutes CEQA as it is currently practiced. BACA contains some provisions that CEQA practitioners, applicants, and lead agencies may find appealing.

BACA limits the public comments that are to be included in an essential project’s administrative record to:

• Electronic and written comments received during the public comment period.
• For CEQA determinations with no public comment period, electronic and written comments received at least 48 hours prior to a public hearing.
• For CEQA hearings or appeals of a CEQA determination, electronic and written comments received at least 48 hours prior to a public hearing on issues that could not have been raised during the public comment period because of significant changes to the essential project or new information that was not known and could not have been known during the public comment period.
• Oral testimony at a noticed and recorded public hearing.
• A response by the lead agency or essential project applicant to the above types of comment or comments from an essential project applicant in response to a question from a public agency or to demonstrate the essential project’s compliance with BACA.

This means all other public comments shall be disregarded and excluded from the administrative record. This would include last-minute document dumps or comments received the day before or day of a public hearing, which are not a part of the administrative record and presumably do not require responses to be provided. (Proposed Section 21021.)

BACA defines the whole of an essential project’s administrative record as consisting of notices, studies, and other documents consistent with the following:

• Documents required to be sent or distributed to members of the public by the lead agency, made available to the public at a public repository such as a library, or included on the website of the lead agency, and
• Public comments as described above.

This means emails, draft versions of documents, and other internal working documents are not a part of the administrative record. (Proposed Section 21027(b).)

Note, since CEQA litigation is based on the contents of a project’s administrative record, what constitutes a thorough and adequate administrative record is important.

What Next?

In our opinion, the spirit of BACA appears to be well-intentioned, but it uses an axe where a scalpel is the more appropriate instrument to effect change. This initiative is undergoing signature collection to be placed on the June 2026 ballot, which is expected.

WEBB’s Environmental Services Team will continue to monitor BACA’s progress and other legislative actions regarding CEQA. While on the surface this looks to be a change to deliver much-needed infrastructure and housing projects to our State, we all know that the process to design, evaluate, and construct projects is a complicated process involving numerous governmental entities, laws, and regulations. Trying to usurp all of these processes, which were put in place for the protection of people as well as our environment, we predict will result in a slew of lawsuits, which will, in the end, undermine the intent behind BACA. And lastly, while we all know our agency clients can be frustratingly slow to work with, the time requirements alone being proposed by BACA will undoubtedly stifle, if not paralyze, already understaffed agencies.