California Data Center Legislation Faces Scrutiny Over Tribal Consultation

California Governor Gavin Newsom is facing criticism from Native communities and advocates for his anticipated signing of data center legislation, S.B. 886 and S.B. 887, which reportedly lack explicit provisions for government-to-government tribal consultation. This is in stark contrast to another bill, A.B. 2218, related to water policy, which explicitly requires consultation with California's 109 Native nations.

Tribal leaders and legal experts argue that while the data center bills aim to protect ratepayers and communities by regulating the industry, they fail to integrate tribes into the consultation process from the outset. Currently, tribal consultation in California is often an 'afterthought,' triggered only when a project undergoes environmental review, and even then, it is contingent on tribes proactively requesting review. This reactive approach, critics say, leads to projects being well underway before tribes are informed, potentially resulting in costly legal battles, such as a lawsuit in San Benito challenging a large development approved without tribal consultation, which the California Attorney General intervened in.

The article highlights that some tribes, like the Cherokee Nation and Sault Ste. Marie Tribe of Chippewa Indians, have already utilized their sovereign authority to ban hyperscale data centers. State Senator Steve Padilla, who authored the data center bills and represents Imperial County—an area with significant water scarcity and a proposed large data center facing litigation—has not included 'Native American' or 'Indigenous' in his framing of the legislation. Experts warn that California's approach could set a national precedent, increasing financial risks for companies that neglect early tribal engagement and potentially impacting Newsom's future political ambitions.