Advocates allege datacenter developers split emissions to avoid EPA review

Cases span New Mexico, North Carolina, Maryland datacenter projects

Environmental advocates are alleging that datacenter developers are dividing their emissions sources into separate, smaller “minor” permits to avoid the more stringent “major” review process required under the federal Clean Air Act — a practice a retired EPA deputy director described as “lego permitting.”

Major-source reviews are supposed to ensure that the pollution a proposed facility would add to the local airshed would not violate air-quality limits when combined with pollution already in the region. The process can be lengthy and may require pre-construction monitoring. If the proposed datacenter is found to violate limits, the process may require companies to take steps to limit their pollution, like adding scrubbers to their smokestacks. Minor permits face far less scrutiny and are typically approved faster, the Guardian reported.

Datacenters can be significant sources of nitrogen oxide, ozone, heavy metals, particulate matter, greenhouse gas, and other dangerous air pollutants, the advocates say.

In New Mexico, the developers of the Project Jupiter datacenter attempted to circumvent a major review by proposing two natural-gas “microgrids” on either side of the facility and submitting two “minor” permits. The federal limit for a minor permit covering hazardous air pollution is 25 tons per year. Project Jupiter’s developers proposed releasing between 20.2 and 24.2 tons of hazardous air pollution from each grid, meaning the project would have released as much as 44 tons in total — well above the minor-source threshold.

Attorneys with the New Mexico Environmental Law Center, representing community members who would be affected by the proposed pollution, called the plan “nothing short of preposterous” in March comments submitted to state regulators. In regulatory documents, attorney Maslyn Locke wrote that “the audacious attempt to arbitrarily distinguish two halves of the same source is insulting to both [regulators] and community members, as it is so clearly an attempt to avoid air pollution control requirements.”

The developer, Austin-based BorderPlex, withdrew the application in April amid fierce community pushback, Locke told the Guardian. A photograph published with the Guardian’s report — credited to Susan Montoya Bryan for the Associated Press — shows protesters gathering outside the New Mexico Environment Department in Santa Fe to oppose Project Jupiter. The New Mexico Environment Department also opposed the proposal, a spokesperson told the paper, though Locke said there had been no public evidence of that opposition until now. New plans for the datacenter have been held up by the New Mexico Supreme Court over procedural problems, Locke added.

In North Carolina, Amazon and utility giant Duke Energy are installing 649 diesel generators to back up a new hyperscale datacenter. They submitted two permits and avoided a major review, despite the site sitting in a low-income area already suffering from high levels of air pollution. The companies’ plans call for nearly 250 tons per year of nitrogen oxides, carbon monoxide, and volatile organic compounds. Amazon is proposing to emit about 98 tons of particulate matter annually and 6.4 tons per year of hazardous air pollutants, including benzene and formaldehyde.

The heavily industrial region is already burdened by pollution from a Duke power plant and a plastic pellet factory, the Southern Environmental Law Center (SELC) wrote in comments to North Carolina state regulators. Heart disease, cancer, and respiratory disease are among the leading causes of death in the region, and advocates warn that the datacenter’s diesel generators’ particulate matter and hazardous pollutants “will almost certainly increase those problems.”

“It appears the companies split the permits to avoid a major review,” Kathleen Sullivan, an SELC attorney, told the Guardian. North Carolina regulators wrote that Duke’s generators are providing temporary power for about a year and that Duke is operating them separately from Amazon’s generators, but Sullivan alleged the companies did not provide lease agreements and contracts to regulators, and that some documents suggest Amazon controls all the generators. “North Carolina regulators failed to protect people’s health and the air we all breathe by blindly accepting the companies’ self-interested statements instead of doing their job to investigate the key facts,” Sullivan said. State regulators are “simply trusting two extremely wealthy and politically powerful companies without any verification,” she added.

In Frederick, Maryland, four datacenters with separate minor permits, including one by Amazon, operate on a single campus with a master developer, regulatory documents show. In other instances, data center developers have staggered minor permit requests over months that cumulatively emit as much pollution as a major source, the advocates say.

Cheryl Vetter, a former EPA employee who worked on permitting and left the agency last year, said the law allows for divided permits in some instances — for example, when two separate companies operate at the same location — but not when all polluting activities are under common control. The sources must also be adjacent, though the definition can include facilities that do not share a border but operate as part of the same complex. Vetter said the divided-permit tactic was not common for data centers until after she departed the agency.

Michael Koerber, a retired deputy director of the EPA’s Office of Air Quality Planning and Standards, who now volunteers with the Environmental Protection Network nonprofit, said these regulatory maneuvers make it less clear how much pollution residents living near the facilities are exposed to, and called the move “lego permitting.” “They want to fly under the radar,” Koerber said. “The more attention they have, the more difficult it gets to get the permit. They have consultants who are very good and know where the shortcuts are.” Koerber added that the situation is not unique to the data center industry.

In a statement, an Amazon spokesperson said the company “appropriately applied for and obtained an air permit for our datacenter project.” On the North Carolina site, Amazon said: “The separate permitting of Amazon’s and Duke’s respective projects reflects the actual ownership and operational structure. They should be – and are – permitted under separate air permits.”

Sullivan countered that even if some of the diesel generators are temporary, high levels of exposure to the dangerous pollutants for even an hour can cause health problems, and that the plans should undergo more meaningful scrutiny.