Datacenter developers accused of using permit tactics to avoid stricter US air-pollution reviews

Developers are said to use at least two techniques to avoid major reviews:

• Divide a single project's emissions into separate, smaller "minor" sources so each stays below federal major-source thresholds.
• Stagger permit applications over time so individual filings look minor even though the combined project emits as much as a major source.

Those approaches speed approvals, reduce public scrutiny and can lower compliance costs for companies, advocates say.

• Project Jupiter (New Mexico): Developers proposed two natural gas "microgrids," each in a separate minor permit, even though the combined emissions would have exceeded the major-source threshold for hazardous air pollutants. Regulatory filings show each grid was listed between 20.2 and 24.2 tons per year of hazardous air pollution, while together they could total as much as 44 tons. The application was withdrawn after community and state pushback.

• North Carolina hyperscale site: Amazon and Duke Energy submitted two permits for backup power at a new center that will use 649 diesel generators. Because the permits were split, the project avoided a major review despite being sited in a low-income area with high existing air pollution.

• New Jersey enforcement action: A New Jersey datacenter was fined $1.1m after an investigation found dozens of unpermitted generators in operation.

Retired EPA deputy Michael Koerber described the tactic as an attempt to "fly under the radar," calling it "lego permitting." He and other former EPA colleagues point out the permitting shortcuts are not unique to datacenters but have become more noticeable as the industry grows. Attorneys and community groups have characterized some filings — specifically the approach in New Mexico — as an audacious attempt to subdivide what regulators and residents see as a single source.

A major-source review can be lengthy. It can include air-quality modeling that sums the new source with existing regional pollution, pre-construction monitoring, public comment processes and potential requirements to add pollution controls such as scrubbers. By keeping projects officially under minor thresholds, developers can avoid these steps.

Implications for communities and regulators