The U.S. government is looking to move a critical transparency step in the approval of data centers behind closed doors. The Environmental Protection Agency (EPA) has plans to remove a requirement that forces states to seek public feedback on applications for air pollution permits, as reported by The New York Times. The change, if it goes into effect, would apply to a subset of air pollution permits. However, the primary concern is around data centers, as local communities seek to delay, or outright ban, AI data center construction.

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The latest proposal applies to permits for a "minor source" of air pollution, which includes landfills, laundromats, steel mills, and, of course, data centers. However, recent analysis of the expansion of AI data centers suggests that environmental impact is growing. The Harvard School of Public Health estimated that the Vantage data center in Loudoun County, Virginia, contributed between $53 million and $99 million in annual health damages, the largest estimate for any single facility ever.

In another example, the analysis conducted by researcher Michael Cork directly influenced a proposal in Fluvanna County, Virginia, to expand a fossil fuel plant. The expansion was ultimately denied based on the findings from the analysis that "shaped the public discussion leading up to the... vote."

The proposal from the EPA would remove, or at least create the opportunity for states to remove, the public discussion that shapes these decisions. The EPA's stance has been that these minor sources don't require federal oversight. However, there's a clear gap when a federal agency decides to stop enforcing federal rules and asks states to step in to make their own decisions.

The Attorneys General from 14 states and three cities signed an open letter opposing the change, writing, "despite the name, even 'minor' sources can pose significant health and environmental impacts." The letter suggests that removing the required publicization of permit applications and 30-day comment period "sidelines these fundamental transparency and democratic safeguards in the name of administrative expediency and relieving regulatory burdens, particularly for accelerating the buildout of data centers and other artificial intelligence (AI) infrastructure."

Although the EPA requires a public comment period after an air pollution permit application, the process has been circumvented in some cases.

In Gilroy, California, an Amazon data center began construction last month without the knowledge of many residents. A years-long approval process between the city and Amazon meant the public comment period had lapsed two years before construction began, leaving the public little time to react. In another case, residents of Festus, Missouri sued the city, arguing that it didn't give the public enough time to review a data center proposal before moving forward with it.

With the EPA's proposed change, responsibility for regulating data centers is placed on the states. Current environmental law allows states to impose stricter environmental standards than the federal minimum, provided the state does not fall below it. The EPA change would allow a state to eliminate the public comment period, since it's not required by federal law.

Currently, a public comment period is still required. The proposed change would go into effect within the next year.