Advocacy groups to ask State Supreme court to decide jurisdiction in Tucker gas plant permit appeals

Residents and advocacy groups who are legally challenging the legitimacy of an air quality permit granted last year for the construction of a massive data center and natural gas complex in Tucker County will soon be asking the West Virginia Supreme Court of Appeals to determine once and for all which judicial division should hear the merits of their appeal.

The request comes after the state’s Intermediate Court of Appeals issued two procedural orders last week dismissing the challenges to Fundamental Data’s air quality permit due to concerns over proper jurisdiction for the filed appeals. Fundamental Data and the state Department of Environmental Protection, which granted the permit, argued that the state Supreme Court of Appeals would be the appropriate venue, and judges with the Intermediate Court agreed.

The dismissals from the lower court did not relate to the merits of the proposed appeals — one of which was filed on behalf of Tucker United, the West Virginia Highlands Conservancy and Sierra Club over the final air quality permit, and the other came from Tucker United, Highlands and Friends of Blackwater over confidentiality claims in the draft permit that was granted to Fundamental Data last year.

Representatives for the advocacy groups challenging Fundamental Data’s air quality permit said in a news release that they “anticipated” that questions over proper jurisdiction would arise, and are prepared to see the state’s highest court settle the questions.

“These decisions have been about which court should hear our cases, not whether Fundamental Data’s air permit is valid or whether its extensive use of confidential business information was justified,” said Olivia Miller, interim executive director for the West Virginia Highlands Conservancy. “We anticipated this might be an issue and tried to file in both courts. Our filing was not accepted by the Supreme Court, and the Intermediate Court has now said the case belongs in the Supreme Court. We are disappointed that, after all this time, no court has heard the merits. We want the courts to decide where it belongs and give us a fair hearing.”

The Intermediate Court said last week that the concerns raised regarding the draft permit were essentially moot as the final permit was already approved by the DEP. Per its order, the question raised in the appeal regarding whether information provided by Fundamental Data was properly treated as confidential business information can be preserved and reviewed alongside the final permit appeal.

For the appeal over the final permit, the Intermediate Court said it believed the case was improperly docketed, as it should be heard by the state Supreme Court. While the deadline has passed for the case to be considered, the Intermediate Court order said the lower court “would find good cause” to allow a notice of past that date since delays in the case occurred through no fault of the parties.

The court stopped short of transferring the case itself, saying it cannot order the Supreme Court to accept and docket an appeal. 

Despite the setback, Miller said that the concerns raised by the advocates and their position regarding the illegitimacy of the air quality permit “remains unchanged.”

“A giant power plant built to serve what Fundamental Data has described as one of the largest data center complexes in the world should not be classified as a minor source of air pollution. From the beginning, we have raised concerns that so much of the permit was redacted that the public never had a meaningful opportunity to review or critique it. The evidence presented by our expert also deserves full consideration,” Miller said. “West Virginians have legitimate concerns about their health, their environment and their right to have a voice in decisions that will fundamentally affect their communities. We just want those concerns to be heard.”

Fundamental Data, a Virginia-based company, has been working since last spring to move forward with a massive data center and natural gas power plant complex between the towns of Thomas and Davis, in Tucker County.

Residents in the region — who were blindsided by the proposed project last March — have spent the last 18 months organizing to get more information from developers about it and the impacts it could bring to their communities, including potential harm to public and environmental health, the economy and more.

The proposed development could span 10,000 acres between the two outdoor tourism-reliant towns of Thomas and Davis. Per the air quality permit application, the proposed development would use gas-fueled turbines with heat recovery steam generators. Diesel would be kept on site in three 10 million gallon storage tanks as a backup power source in case of gas line interruptions.

Fundamental Data initially claimed that the project could be up and running by 2028. To date, however, the company has yet to apply for approval through the state’s new high impact data center certification process. State law requires companies intending to build microgrids or high impact data centers in West Virginia to apply for certification from the state within 10 days.

Fundamental Data has maintained that state statute does not currently apply to its proposed Ridgeline project, as it remains in a “conceptual” phase.

But residents who would live next to the facility and breathe its potential emissions have strongly disagreed, and have urged state regulators to stop giving leeway to the company.

For now, Fundamental Data’s air quality permit remains on the books and valid following the orders from the court filed this week.

Jim Kotcon, conservation chair for the West Virginia arm of the Sierra Club, said that while advocates “recognize there is some confusion” over who holds jurisdiction in the cases due to conflicting parts of state statutes, “someone needs to take a hard look at the merits of the case.”

“This case could set precedents for a number of other large power plants, and the amount of air pollution that West Virginians would face deserves a full review of the facts, not just a passing of the buck from one court to another,” Kotcon continued. “The health and environmental impacts from air pollution are real and deserve immediate attention.”

Amy Margolies, the executive director of Tucker United, said that while the grassroots organization was “encouraged” that the Intermediate Court provided a roadmap for how they should move forward, the work in front of them is far from over.

“We will press ahead and compel the courts to act because West Virginia officials are blatantly ignoring the serious concerns that residents have about Fundamental Data’s giant power plant and data center proposal,” Margolies said. “Over the past year and a half, opposition from West Virginia residents to Fundamental Data’s proposal has grown exponentially, and it continues to grow each day as concerns mount about the harms of data centers. We remain hopeful that the West Virginia court system will do its due diligence to protect the safety and voice of its people.”