An environmental advocacy group’s attempt to halt progress on approval for a Southern New Mexico data center’s state air quality permit hit a roadblock Monday.
Hearing officer James O. Browning, who was appointed in recent weeks to preside over the permit decision, refused Monday to dismiss Project Jupiter’s air quality permit application as “administratively incomplete,” despite a request from Santa Fe-based New Energy Economy.
The permit is the main regulatory hurdle for the massive and controversial data center’s power source. As a result, buildings at the site remain without power as proceedings inch along.
Browning’s decision follows the disclosure of emails from the Environment Department to Project Jupiter attorneys this month noting new modeling requested by agency staff showed higher concentrations of pollutants than emissions modeling the developers submitted earlier this year.
In the wake of the Environment Department’s questions about emissions estimates, Oracle and Yucca Growth Infrastructure, the company developing the microgrid, announced additional changes to their design Oct. 14, which they said would cut emissions by about 35%.
“This is a radical redesign of a complex fuel cell installation that the parties had already been struggling to understand before YGI purported to revise its application,” Christopher Dodd, counsel for New Energy Economy, said during Monday’s four-hour hearing, calling the application a “moving target” that presents a “direct affront to due process.”
In the new design, Bloom Energy — the company behind the fuel cells that has faced scrutiny and investor lawsuits — says they will now only use 1,600 megawatts of what will amount to 2,462 allocated megawatts.
Lindsay Leveen, a chemical engineer based in Northern California and longtime Bloom critic, questioned in an interview why the company would need 862 “redundant” megawatts.
“There’s no way to account for the gap except for some crookery or some scheme,” said Leveen, who has called for an investigation into what he sees as an effort to shift fuel cell maintenance costs onto taxpayers.
The Environment Department’s own counsel seemed to break with the data center’s developers in a Friday filing, writing that “material revisions at this late stage” meant the application was “not ready for primetime.”
Nevertheless, Kelsea Sona, counsel for the department, said Monday they did not support dismissing the application.
But she did not have an estimate for how long the department’s analysis of the modeling would take.
The state Environment Department’s deadline to make a decision on the permit is currently set for Nov. 23, but it might be pushed to Dec. 18 to account for the 25-day state Supreme Court-mandated pause on proceedings. A public hearing — originally scheduled for September — will now start Dec. 7 in Sunland Park.
While Browning said it was “premature” to change the schedule Monday, he added it might need to be revisited later as the department reviews the application — or if they do not get back to him on how long the technical review will take.
“YGI cannot have it both ways: fundamentally redesign its facility while demanding that NMED, the public, and opposing parties rush to accommodate its corporate deadline,” New Energy Economy Executive Director Mariel Nanasi said in a statement. “Public health and due process must come before Project Jupiter’s timetable.”
Fraudulent public comments
Maslyn Locke, a staff attorney for the New Mexico Environmental Law Center, said Monday the revised application merits a new public comment period.
But Jennifer Bradfute, counsel for Yucca Growth Infrastructure, argued meaningful public input had been established through “numerous public comments.”
However, thousands of comments on the air quality permit application have been deemed fraudulent amid an ongoing New Mexico Department of Justice investigation.
In an Oct. 14 letter to Environment Secretary James Kenney, Attorney General Raúl Torrez wrote a “substantial share” of the comments were “not sent by members of the public acting on their own.”
He said about 60% of the comments, roughly 10,000 to 10,600, used the same pro-Jupiter form letter and came from about 9,000 email addresses.
Filings will not be restricted
On the other hand, developers argued the recent design shift claiming to decrease emissions by 35% did not constitute a significant change, and therefore did not warrant delaying the Dec. 7 hearing.
Jennifer Biever, counsel for Yucca Growth Infrastructure, said during Monday’s hearing reducing emissions would improve air quality, rather than “impermissibly impact it.”
“The purpose of the deadline was ultimately to protect the applicants so that these types of permit hearings don’t end up lasting for years,” Biever added.
Amid a deluge of recent filings in the case, the state Environment Department asked Monday for them to be limited in some way.
Browning said he would not impose restrictions on the number of filings parties submit, or how frequently they can submit them as “a courthouse always has to be open.”
Julia Gentin is a reporter for The Las Cruces New Mexican, The Santa Fe New Mexican and Searchlight New Mexico through a partnership with Report for America, a national service program that places journalists into local newsrooms.
