Officials in Berkeley County, where one of West Virginia’s high-impact data centers has been designated, have asked the state Attorney General for legal guidance about how an overriding state law affects local responsibilities.
Berkeley County, in a 10-page letter dated Sept. 18, asked how the state statute’s broad preemption of local “legal jurisdiction” affects everyday county functions, municipal stormwater duties and public service districts.
One of the major questions involves how county officials can comply with state control of high-impact data center property on one hand while, on the other, local authorities are under duty to comply with federal law on stormwater drainage: If state law prevents Berkeley County from conducting mandatory runoff reviews and site inspections, does it put the county at risk?
In an Oct. 9 response, Attorney General J.B. McCuskey formally declined to issue an advisory opinion.
The reason was because the Attorney General’s office is already actively defending the constitutionality of West Virginia’s data center statute in a separate, pending lawsuit in Ohio County.
The exchange represents a flare up as communities around West Virginia try to determine, as a practical matter, how they could be affected by a proliferation of high-impact data centers and the state law passed two years ago to govern some of the biggest projects.
MetroNews obtained the exchanged documents through an information request. Berkeley County is navigating a major 600-megawatt digital infrastructure project developed by Washington, D.C.-based firm Penzance.
Berkeley County officials requested guidance on how state preemption interacts with their ongoing duties, specifically raising questions about issues like local stormwater utility management local tax collection, emergency response and the statutory powers of constitutional county officers.
Broadly speaking, legislation passed two years ago and signed by the governor strips local governments of their traditional land-use, zoning, and regulatory control over certified High Impact Data Centers and microgrid districts, replacing local oversight with a uniform state-level framework.
COMMENTARY BY TJ MEADOWS: Local Control. Local Burden. Local Benefit.
Counties like Berkeley are still trying to navigate the finer definitions and details.
One is, believe it or not, how county is defined. Does “county” in the data center law refer only to the county commission as a corporate governing body, or does it also encompass constitutional officers like the sheriff, prosecutor, clerk, assessor plus courts, independent boards and public-service districts?
Furthermore, Berkeley officials would like to know, does the withdrawal of “legal jurisdiction” eliminate all governmental authority over the data center site, or is it limited strictly to local regulatory control over data center siting, land development, permitting and operation?
For example, does the sheriff retain authority to execute warrants, investigate crimes, and serve civil process and do local courts retain venue over crimes committed on-site? Can local health departments inspect food service or sewage, and who coordinates emergency evacuation and hazardous-materials planning?
And, at what exact point is local authority withdrawn — upon state certification, upon land acquisition by the developer, when construction starts, or only when a specific local action would limit or regulate the data center?
A central part of what Berkeley County is asking has to do with the county’s ongoing obligations under federal environmental law.
The Berkeley County Commission and the Berkeley County Public Service Stormwater District serve as joint co-permittees under a federal Municipal Separate Storm Sewer System permit and are bound by a federal court consent decree. These federal frameworks require mandatory construction site plan reviews, priority runoff inspections, illicit-discharge elimination and post-construction monitoring.
So, may local stormwater officials continue to enforce objective stormwater-quality, erosion-control and illicit-discharge rules on a certified data center site to fulfill their federal permit and consent decree obligations, even if discretionary land-use and grading permits are preempted?
And if they’re not allowed, who would?
All in all, Berkeley County would like to know from the Attorney General: Pending an authoritative legal ruling, should local officials presume ordinary statutory duties continue unless expressly preempted, and are they protected from civil or criminal liability when acting in good faith?
The Attorney General’s Office declined to provide legal interpretations, citing active involvement in a separate lawsuit over the constitutionality of the state’s high-impact data center law.
“Consistent with that discretion, this Office generally declines to issue opinions on questions that are pending before, or likely to come before, the courts,” wrote the Attorney General’s Office.
“Your request involves both ongoing and anticipated litigation.”
The Attorney General’s Office has already intervened in a separate Ohio County case over data centers, Barks vs. Silicon Foundation.
In that case, 12 local residents aim to block the development of a proposed facility known as the Warwood Data Center on the site of the former Centre Foundry along the Ohio River. They argue that HB 2014, West Virginia’s high-impact data center legislation, unconstitutionally strips local governments of their land-use, zoning and regulatory oversight.
The state’s position is that HB 2014 is a valid exercise of legislative power and that the plaintiffs’ claims of environmental and economic harm are speculative.
“So any construction we might offer could bear directly on questions now before the Barks court and on positions the State is advancing in that case,” the Attorney General wrote to officials in Berkeley County.
“Because the statute is new and its constitutionality is already under challenge, further litigation over its scope is likely. We therefore must respectfully decline your request.”