EPA proposes ending public comment rules for data centers

Communities could lose federally required opportunities to learn about proposed data centers and comment on their air pollution permits under an Environmental Protection Agency proposal. States could retain those opportunities, but environmental advocates warn that removing the federal requirement could make facilities and their potential air quality effects harder to assess before construction.

The proposal, introduced over the summer, would roll back notification requirements for facilities permitted as "minor sources" of pollution. It comes as the artificial intelligence boom drives a massive surge in data center construction across the country.

The EPA says the change would give states control over their permitting processes without changing emissions standards or weakening environmental protections. Amanda Garcia, senior attorney and data center lead at the Southern Environmental Law Center, says public participation is an important protection that communities want to preserve.

What the proposal would change

Garcia discussed the proposal with "Marketplace Morning Report" host Kimberly Adams. Their edited conversation addressed both the scope of minor-source permits and the choices states would retain.

Kimberly Adams: Let's dig into that a bit more because, over the summer, the EPA proposed rolling back notification requirements for minor sources of pollution. What counts as minor sources?

Amanda Garcia: So, the term "minor source" is really a bit misleading because while there are some sources of air pollution that are truly minor, many of them are major industrial facilities like data centers, even some power plants, that have agreed to take some limits on how much pollution they can put forward in order to get a minor source permit. And the incentive for doing that is that there are less stringent requirements for minor sources, but the underlying facility itself can still be a source that is going to have a major impact on the community.

Adams: If this EPA proposal goes through and actually becomes a rule, what does it mean in terms of what states have to do?

Garcia: States don't have to change anything about their public notice and comment requirements for minor source permits; the federal rule really sets a floor for states that they have to comply with. But if states want to continue to allow for notice and comment, they absolutely can, and we will be encouraging them to do so because communities are saying loud and clear: We want more opportunities to understand what's happening on the ground in our community, not fewer.

The broader air-quality framework

The permitting proposal is among changes the Trump administration has proposed to Clean Air Act protections, according to Garcia. In the same conversation, Adams asked her to explain the law and her concerns about the administration’s approach.

Kimberly Adams: Let's start with a refresher on the Clean Air Act. What is it, and what does it do for people?

Amanda Garcia: The Clean Air Act is our country's foundational environmental law that protects air quality, and it does that primarily by setting limits that protect public health for the air that we breathe. And the way that we meet those limits is the states have to come up with plans that will meet those national limits, and in particular, they have to have permitting in place for new sources of air pollution and existing sources of air pollution; those permits have limits in them that make sure that the facilities that we build for the first time have the best available technology for controlling air pollution.

Adams: Under the Trump administration, the EPA has been making quite a few changes to the Clean Air Act, including those that advocates say are kind of undermining it. What have some of those changes been so far?

Garcia: The administration has proposed to roll back a lot of key environmental protections in the Clean Air Act, including rolling back those ambient air quality protections that protect the air we breathe, but they're also looking at rolling back some of the permitting protections. And one key one that I really am concerned about is taking away the ability of the public to comment on most air permitting for new sources of air pollution across the country, and those new sources of air pollution include things like data centers.

EPA says states would remain in charge

In its full statement provided to Marketplace, the EPA defended the proposal:

Don’t let yourself get fooled by the fake news media. In our proposal we are saying that states get to pick how they want their permitting process to go for minor sources. The proposal does not demand that states make particular revisions to their programs and does not alter emission standards or weaken environmental protections. Rather, the proposal simply aligns the national program with the Clean Air Act language to ensure that states are in the lead regarding their programs. EPA’s air permitting partners would still be required to meet all applicable statutory and regulatory requirements to maintain the utmost human health and environmental protections. This approach is intended to reduce administrative burden and responsibly speed up permitting, supporting American economic development and energy dominance.

The proposal has not become a final rule. If it does, states would still be able to keep public notice and comment requirements for minor-source permits - leaving them with a choice about whether to preserve those opportunities as data center construction expands.

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