WV Intermediate Court dismisses environmental groups’ challenges to Fundamental Data permit

The West Virginia Intermediate Court of Appeals dismissed two appeals challenging Fundamental Data’s proposed Tucker County data center and power plant this week, ruling that it does not have jurisdiction to rule on the cases under current environmental review statutes.

The court on Wednesday filed two separate orders — one regarding Fundamental Data’s draft permit and the other over the final permit, both of which were issued by the state Department of Environmental Protection’s Air Quality Board last year. Tucker United and the West Virginia Highlands Conservancy filed both appeals, along with Friends of Blackwater on the former and the state arm of the Sierra Club on the latter.

The court did not rule on the merits of either appeal or determine whether Fundamental Data’s permit was properly issued in the first place. Its rulings instead addressed what court has jurisdiction to review the challenges in light of potentially conflicting state statutes.

The environmental groups previously argued the court had jurisdiction over the cases, while Fundamental Data and the DEP argued they belonged in front of the state Supreme Court of Appeals.

In dismissing the appeal involving the project’s final air quality permit, the court agreed with Fundamental Data and the DEP, ruling that the case belongs before the Supreme Court under state law. The court cited a provision specifically governing appeals involving the denial, approval or modification of air quality permits, which says such appeals are to be filed with the supreme court within 30 days unless all parties agree to proceed in Kanawha County Circuit Court.

The court said that, because delays in the case occurred through no fault of the parties, it “would find good cause” to allow a notice of appeal concerning the underlying matter to be filed past the deadline usually enforced by the state supreme court. It also said the parties may appeal the court’s dismissal order to the Supreme Court.

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

For the appeal over the draft permit, the court said the case and the requests made by the environmental groups to vacate previous rulings are essentially moot, as the final permit has been issued and an appeal over it has already been filed through the newer case. The court said issues raised in the earlier challenge could remain available for review as part of the final permit appeal, if it moves forward.

The court said that, because delays in the proceedings occurred through no fault of the parties, it “would find good cause” to allow a notice of appeal concerning the underlying matter to be filed past the usual deadline. It also said the parties may appeal the court’s dismissal order to the Supreme Court.

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.