The Texas Commission on Environmental Quality (TCEQ) has temporarily shut down its online application system and apparently suspended the approval of storm and wastewater permits for several projects related to data centers, after a report earlier this week claimed the commission was in violation of a directive from Texas Governor Greg Abbott.
The report was published Oct. 19 by the national nonprofit FracTracker Alliance, which analyzes the health and community risks of the oil and gas industry as well as related, energy-intensive industries, in collaboration with the consumer advocacy group Public Citizen.
The original report showed data pulled from TCEQ open records indicating 35 actions taken to advance data center development since Abbott’s Sept. 21 letter.
On Oct. 21, nine additional actions and three ongoing actions were added to the report’s accompanying spreadsheet.
The governor’s letter directed the TCEQ to “halt all permits sought by data centers” until the completion of an audit and review of all data center projects looking to join the state’s energy grid by the Electric Reliability Council of Texas (ERCOT) and the Public Utility Commission of Texas (PUCT).
The letter also said that until the completion of the audit, “no other state agency shall move forward with regulatory approvals related to data centers.”
In its compliance update to the governor on Monday, the TCEQ asserted that it has not issued permits for data centers or supporting infrastructure.
Sam Law, an Austin-based researcher with FracTracker, is the author of the report. He said that while the TCEQ may not have issued permits, the commission continued with other “regulatory approvals,” which goes against the governor’s letter.
That included new stormwater construction approvals, certifications on emissions requirements, public notices of air quality permit applications from data center developers, and reviewed applications for gas plants or generators.
On Wednesday, the TCEQ posted a release on its website that its State of Texas Environmental Electronic Reporting System, or STEERS, has been temporarily shut down to “ensure all applications are reviewed by agency staff to determine if they are related to data centers.”
Law told KTTZ that even if the process is automatic, it is a required step that allows data center development to progress.
“TCEQ really is a rubber-stamping machine, and they have set up a bunch of automated processes to approve a lot of things without very much human oversight, and what seems to have happened is that when the pause was issued, they didn't really look at all of the different automated systems,” he said. “But I think they realized what was wrong, and they've taken it down and posted this notice saying that their STEERS portal is no longer online. So it's great that they're suspending these.”
One of the groups involved in the initial report, Public Citizen, posted a release on Oct. 22 stating it found that the TCEQ “has suspended at least 17 permits issued to data center developers” since the release of the report.
Law estimated those 17 approvals added up to 5.2 square miles on which the TCEQ had previously allowed “ground clearing, excavation, [and] major earthworks to begin.”
One of the suspended authorizations was for 700 acres in Huspeth County; others were in the 300 and 400 acre range, such as the 450-acre suspended authorization in Taylor County.
In an email statement, a representative with the TCEQ reiterated that the stormwater Notices of Intent (NOI) are automated. The commission said that these notices “are not operational permits related to data centers,” but that “any NOI related to data centers have been suspended.”
Despite the suspension of the notices, Law said there is a chance construction on the sites may have continued. He has requested a “compliance inspection” from the TCEQ.
“If people are really used to this, just these permits just being automatically issued, it's unclear whether that means that the work has actually stopped or if it's continuing,” he explained.
The continuation of public notices was another one of Law’s main concerns with the TCEQ’s regulatory action following the governor’s directive.
Certain proposed construction and development trigger a public notice, including stormwater coverage, large-scale gas plants, and those expected to put out air pollutants in a “significant amount.”
“And this starts a 30-day public comment period where people who are impacted can request a hearing, talk to their state senator to do a contested case hearing,” Law explained of public notices.” Our concern here is that people who are paying attention to the news might think, ‘Oh, you know, I don't have to pay attention to this because there's a pause,’ and then miss their 30-day period.”
While the stormwater notices have been suspended, the TCEQ has not provided an update on air permits, which also require a public notice. One of the projects identified by FracTracker, the Nexus Data Center in Hill County, had a public hearing requested on Oct. 13, according to TCEQ records.
The seven air emission-limit certifications identified by the report appear unchanged after the TCEQ’s suspension of stormwater approvals. They are still labeled as “complete” with a permit status of “issued” in TCEQ records. The most recent of these certifications, in Bexar County, was received and approved on Oct. 16.
Some of the gas plant or generator applications that Law included in his report were marked as “expedited,” including one apparently attached to a data center project in Borden County. So while it has not received a permit, it is moving through the review process and has not been updated since the suspension of the stormwater approvals.
“The reviews of these smaller gas permits– they haven't said that they're going to stop doing those, so they could still be getting applications and doing the reviews, which is necessary,” Law said. “It's not a pause. A pause doesn't look like that. And then also, I believe that the clock is ticking on these 30-day public comment periods.”
While Law celebrated the actions the TCEQ has taken since the report was released, he said the commission should be more transparent in its communication with the public about the oversights and address the concerns over gas plants and emissions procedures.
“They should stop accepting applications from data center-related things and stop moving them through the review process. That's what a pause is,” Law said. “It's not continuing to expend manpower and get everything in place, so the moment you get the word, you can just rubber stamp everything, which seems to be what they're preparing to do right now.”
Law stressed that, even after the latest reversals, the TCEQ’s actions indicate a need for a statewide moratorium on data centers.
“There's no reason to rush this,” he said. “And I think that the governor's pause is a step in the right direction. But what we really need is an actual moratorium for several years to do serious cumulative state impact statements, really understand the effects, and then decide if the industrialization and pollution of our rural communities in Texas is worth it for this technology.”