EPA’s proposed Clean Air Act changes may impact public scrutiny of data centers

The Environmental Protection Agency (EPA) has proposed new rules that would no longer require minor sources of air pollution to disclose their proposed emission levels to the public unless state or local agencies request it.

The EPA announced the change to the Clean Air Act (CAA) in July. The proposal would alter the New Source Review (NSR) permitting process for minor sources of pollution by giving state and local agencies greater discretion over whether projects must provide public notice of their projected emissions. The EPA wrote that the move is intended to reduce administrative burdens, speed up permitting and support economic development and energy production.

Under current rules, projects expected to emit relatively small amounts of air pollution are generally required to provide public notice through state or local agencies. The EPA would continue to oversee larger pollution emitters, such as oil and gas companies.

Some environmentalists question whether the proposed change in the law was meant to reduce the scrutiny of certain polluters, including data centers. According to The Guardian, the server warehouses have been known to emit nitrogen oxide, which helps form ozone, carbon monoxide and heavy metals, among other pollutants.

Some states and local jurisdictions, however, have actively promoted the development of large data centers. Critics of the proposal say local officials may be unlikely to scrutinize the developments.

Data centers have come under increasing criticism as they have proliferated across the country. Much of the concern has centered around the amount of water and energy required to run the centers.

Another concern, according to The Guardian, is the amount of pollution that will be released by the server warehouses, which may use dozens of diesel generators or gas turbines to help power the complexes, or to provide backup power generation.

The companies bankrolling the projects have been accused of dividing data center pollution permit requests into individual parts for each generator or turbine, “so they fall under ‘minor’ reviews conducted by states and avoid a larger review by the EPA that would be more costly, time consuming and difficult to legally defend,” The Guardian reported.

The EPA states the rule changes will leave decisions about public participation requirements with state and local air agencies, which it says are the best authorities to manage the minor NSR programs. This move would align EPA’s regulations with “the best reading of the Clean Air Act (CAA).”

In its news release, the EPA said minor sources of pollution generally have relatively low emissions and limited environmental impact, which is why the CAA intentionally differentiates between minor and major sources of pollution emissions. The permitting process is already cumbersome, and unnecessary public notices and comment procedures for projects with limited environmental impact only slow down the process.

“The state and local authorities closest to the issues and the public should be making the decisions on the permitting process as much as possible, not Washington,” EPA Administrator Lee Zeldin said in a press release.

“Since day one,” Zeldin added, “the Trump EPA has followed the law as written, and if finalized, the agency will continue to oversee that the law is upheld. However, this EPA has also proven that we can follow the law and streamline processes to apply commonsense. In doing so, we are cutting unnecessary and burdensome red tape, unleashing American energy, and advancing cooperative federalism.”