Tension is increasing in proceedings around the biggest regulatory hurdle for a massive and controversial data center in Santa Teresa.
Buildings remain without power as wrangling continues over an air quality permit for a natural gas fuel cell plant to power Project Jupiter. A public hearing on the permit is set for early December; however, Kelsea Sona, an attorney for the New Mexico Environment Department, said at the end of a five-hour hearing Thursday the agency’s draft permit might not be complete in time for a Tuesday deadline to provide notice of the public hearing.
Still, the agency hasn’t altered the timeline or dismissed the permit application, drawing criticism from opponents.
Sona said the due date for the public hearing notice would be unrealistic given the vast amount of technical analysis the department must undertake in fewer than five days, due to changes to the project proposal.
“The lack of information is still highly relevant to the technical review,” Sona said during Thursday’s hearing. “I’m not sure what the department can do come Tuesday when we have to provide this public notice.”
Neither Sona nor the agency’s hearing officer, James O. Browning, has taken official action to dismiss the developers’ revised permit application or to push back the weeklong hearing in Sunland Park starting Dec. 7.
“The department is saying they cannot comply with the law … but they won’t ask for what they need in order to comply with the law,” Mariel Nanasi, executive director of Santa Fe-based environmental advocacy group New Energy Economy, said in an interview Thursday.
“It’s politically bizarre,” said Christopher Dodd, an attorney for New Energy Economy. “I’ve never seen anything like this, where a party won’t take a position at all.”
Browning said it’s the Environment Department’s job to adhere to the schedule. If the department doesn’t comply, he added, he “will have to deal with that down the road.”
“If the [Environment Department] can’t grant a permit, then I think it knows what it needs to do,” Browning said. “It needs to deny [the permit].”
An Environment Department spokesperson did not immediately respond to a request for comment.
Currently, the department is awaiting the developers’ responses to questions about the project’s updated emissions projections.
The questions range from the lifespan of the fuel cells — which environmental groups say is shorter than manufacturer Bloom Energy claims — to the availability of scandium, the rare earth material Bloom depends on China to obtain.
Browning did not order full responses to the parties’ requests, rejecting at least one as overly broad.
But unlike his predecessor, Max Shepherd, who reversed course on allowing discovery — the court-style evidence sharing process that would require the data center’s developers to answer more questions before the hearing to avoid surprises — Browning made clear some discovery would be allowed, though it would be limited in scope.
The developers’ deadline to answer the Environment Department’s questions is Monday, giving the agency just one day to complete a technical analysis that became more intensive in recent weeks.
Oracle, the main company behind Project Jupiter, announced what the opposition saw as significant changes to its fuel cell power design Oct. 14, which the company said would cut emissions by about 35%. In the new design, Bloom Energy says it will now only use 1,600 megawatts of what will amount to 2,462 allocated megawatts. This has led some to question about why the company would need 862 extra megawatts on-site.
The Environment Department’s counsel seemed to break with the developers in an Oct. 22 filing, writing that “material revisions at this late stage” meant the application was “not ready for primetime.”
Browning on Monday denied New Energy Economy’s motion to dismiss what it saw as an “administratively incomplete” air quality permit application, which it called a “moving target.”
Nanasi said in a statement Monday that Yucca Growth Infrastructure, the company developing power infrastructure for the data center, “cannot have it both ways: fundamentally redesign its facility while demanding that NMED, the public, and opposing parties rush to accommodate its corporate deadline. Public health and due process must come before Project Jupiter’s timetable.”
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. She covers the Southern New Mexico region. Learn more about Report for America at reportforamerica.org.
