You’re out of free articles.
Log in
To continue reading, log in to your account.
Create a Free Account
To unlock more free articles, please create a free account.
Sign In or Create an Account.
By continuing, you agree to the Terms of Service and acknowledge our Privacy Policy
Welcome to Heatmap
Thank you for registering with Heatmap. Climate change is one of the greatest challenges of our lives, a force reshaping our economy, our politics, and our culture. We hope to be your trusted, friendly, and insightful guide to that transformation. Please enjoy your free articles. You can check your profile here .
subscribe to get Unlimited access
Offer for a Heatmap News Unlimited Access subscription; please note that your subscription will renew automatically unless you cancel prior to renewal. Cancellation takes effect at the end of your current billing period. We will let you know in advance of any price changes. Taxes may apply. Offer terms are subject to change.
Subscribe to get unlimited Access
Hey, you are out of free articles but you are only a few clicks away from full access. Subscribe below and take advantage of our introductory offer.
subscribe to get Unlimited access
Offer for a Heatmap News Unlimited Access subscription; please note that your subscription will renew automatically unless you cancel prior to renewal. Cancellation takes effect at the end of your current billing period. We will let you know in advance of any price changes. Taxes may apply. Offer terms are subject to change.
Create Your Account
Please Enter Your Password
Forgot your password?
Please enter the email address you use for your account so we can send you a link to reset your password:
Julie Liu is converting gas customers to heat pumps, one home at a time.

For Julie Liu, electrifying a home is like putting on an Off- Off- Broadway show.
Working almost entirely alone, Liu serves as producer, stage manager, and director, bankrolling the production, hiring the crew, arranging the logistics, choreographing the action, and dazzling the audience — the homeowner or tenants — along the way. Heat pumps and induction stoves are the stars. Plumbers, HVAC technicians, and insulation specialists sub in for set decorators, sound engineers, and costume designers. Electricians play themselves.
If all goes well, after just a week or so of focused, frenzied work, the show arrives at the grand finale: the capping of the gas line.
Liu has staged this performance more than 25 times since 2023 as the implementation contractor for Electric Advantage, an incentive program in New York offered by the gas and electric utility Con Edison. The program covers 100% of the cost of replacing a building owner’s gas-powered appliances with electric versions, plus installing insulation and air sealing. Although it sounds too good to be true, there’s no catch — except that you have to be lucky enough to own a building that’s eligible for the program and agree to cut your gas connection.
ConEd, as it’s known, delivers natural gas to just over a million customers in the Bronx, Manhattan, Northern Queens, and Westchester County, and qualifies buildings for the program by first identifying sections of pipeline on the peripheries of its network that are due for replacement. Then it runs a cost-benefit analysis. If it would be cheaper to electrify all of the buildings served by a given stretch of gas main than to dig up the street and replace the pipe, the company starts going out to the homeowners and businesses along the line to gauge their interest. If the owners agree to go electric, that’s when Liu steps in.
There’s no established name for what Liu does. “It’s not a home improvement business, it’s not an energy efficiency business, it’s not an HVAC business,” she told me. “It’s about putting together a tight live production.” An apt title would be “electrification contractor” — one of the few, if not the only one of her kind operating in the New York area.
Anyone who has tried to electrify even just one appliance in their home has probably wished they could hire someone like Liu. Between finding an available and trustworthy contractor, navigating quotes and equipment choices, and managing ballooning costs, the process is often frustrating and confusing. It’s a major time commitment, not to mention a big capital investment — not a winning formula for mass adoption.
Liu doesn’t offer her services to just any homeowner, though. She only takes on jobs that come through contracts with utilities and government agencies like the New York State Energy Research and Development Authority, or NYSERDA. Having ConEd’s backing is actually one of the major benefits Liu brings to the work. It means she’s held to stringent standards of performance. Her business fronts the full cost of every Electric Advantage project, putting up tens of thousands of dollars for parts and labor, and only gets paid back by the utility after she demonstrates she’s met every requirement. Engineers check her design choices on the front end and the installations on the back end. A missing anti-tip bracket on a stove once almost cost her an entire $100,000 job, she told me.
Liu is the first to admit that all of this is a huge headache and a tough business model. She also fundamentally believes in this being utility-backed work. When a homeowner pursues a project on their own, the oversight is only as strong as their own ability to vet contractors and manage the job — which, with limited time, information, and leverage in the market, is likely not nearly as strong as Liu’s.
“My conviction is, for the middle class to thrive, we need to have a lot of things that are expensive to do and complex to do to become utilities,” Liu said. “That’s my hypothesis since I was 22.”
In the climate world, a lot of advocates and experts also believe that a utility-run program like Electric Advantage is the key to unlocking an all-electric future, although for slightly different reasons. When random individual homeowners decide to electrify, a shrinking number of remaining gas customers have to pay to maintain the entire pipeline system. If utilities instead strategically prune the gas system while helping customers go electric, the theory goes, it can reduce costs for remaining gas customers while also creating sustained demand for heat pump retrofits. This would help build the workforce necessary to perform them and create economies of scale.
The problem is, ConEd has 4,400 miles of gas mains. In just over two years of running Electric Advantage, the utility has retired about half of one mile. If the program, or similar ones at other New York utilities, were ever to scale from converting about a dozen buildings a year to taking on the whole state, it would need a lot more Julie Lius. ConEd has a small network of contractors who take on projects with more limited scopes, but Liu is the only one doing whole-home decarbonization.
“It’s high capex deployment of complex work in the field, and you have to have people who go into people’s homes and not piss them off,” said Liu. “That’s a very unique business.”
Liu is not exactly a known figure in the world of building electrification. She’s not on social media or otherwise broadcasting her accomplishments or policy views. You won’t find her headlining clean energy panels or on the boards of nonprofits. But Liu has been quietly leading building electrification in the New York area for nearly a decade. Her early belief in heat pumps and determination to bring them to the New York market helped lay the foundation for future programs in the state.
Long before all of this, Liu was a Taiwanese immigrant growing up in Hacienda Heights, Los Angeles. Her family moved to California from Taipei in 1983, just before she entered seventh grade. Liu told me she “did all the good, dutiful-daughter things.” Her family owned a small furniture manufacturing business, and she went to college at Carnegie Mellon for business and industrial design with the intention of helping her dad produce “more inspiring furniture than colonial reproductions.”
Then her education at Carnegie Mellon took her in a different direction. The programs were built around “productivity, process orientation, efficiency, build it cheaper, faster — it’s all about, can you get things done?” She developed an appreciation for utilities, in a broad sense — for how much of the economy was built around “serving more and more people at scale, and serving them better things.”
When she graduated in the mid-1990s, Liu broke the news to her parents that she wanted to get into telecommunications — the hot field at the time. She initially thought she wanted to work at the Federal Communications Commission, but some early mentors warned her that she wasn’t suited for government work and connected her with a job at DirectTV. “You’re too eager to get things done, you’ll be banging your head against the wall,” she recalled being told at the time. “Go to the private sector.”
She went on to spend the next 15-odd years working in satellite television in New York, with a brief interlude starting a software-as-a-service company with an ex-boyfriend that was a little too ahead of its time, according to Liu. She was successful in the industry, but she wasn’t very happy, she told me. She felt like she was “growing couch potatoes.”
By 2014, after a few zigs and zags — business school, a stint at an online real estate startup in Luxembourg — Liu found herself back in New York, unemployed, and spending a lot of her time trying to fix up the rat-infested Brooklyn brownstone she owned. The building had an oil-burning heating system that was draining her bank account. She wanted to install minisplit heat pumps, which were everywhere back in Taiwan, but at the time nobody was really doing that in New York.
In early 2016, still unemployed and living off savings and tenant rent, Liu reached out to the New York State Energy Research and Development Authority, or NYSERDA, to ask about incentives for minisplits, and got connected to a consulting firm called the Levy Partnership that was putting together a proposal for the agency’s first-ever heat pump pilot project. The company told her that brownstones were too difficult and expensive, though, and that it was planning to propose doing the pilot in just a couple of mobile homes on Long Island.
Liu was peeved. Statistically that wouldn’t have even constituted a demonstration, she told me. “That’s not even an alpha in the world of where I came from, satellite communications.” She made a bet with the firm. It was a Thursday. If she could get a bunch of her neighbors to sign letters of interest in the pilot by Monday, she told the company, then “you’re gonna copy and paste that trailer park proposal and say there’s gonna be one for brownstones.”
Needless to say, she got the letters. But Liu didn’t just get the Levy Partnership to expand its proposal or to include her brownstone in the pilot. She convinced it to hire her to help implement the projects. She had looked up the census data on home heating and saw that about half the boilers in the New York City area used expensive heating oil. “I was like, there’s the money,” she told me. She saw that people could lower their bills by switching to heat pumps, while also getting access to better cooling in the summertime. “The business opportunity was just like when I got into satellite, right? It was a transition,” she said.
A week after she and the firm co-submitted their proposal to NYSERDA, Liu incorporated her new company under the name Centsible House. (Her business now goes by the name Carta Electric Homes.) NYSERDA awarded the team the funding a few months later, and by March 2017 they were executing agreements with homeowners to participate. The pilot ran for two years and installed heat pumps in 20 homes throughout Brooklyn, Queens, the Bronx, and Long Island, including Liu’s brownstone. Learnings from those projects informed the development of New York’s statewide Clean Heat program, a partnership between utilities and the state that launched in 2020, offering rebates for heat pumps. Liu was “patient zero,” she told me.
After that, NYSERDA as well as ConEd and another local utility, National Grid, hired Liu for other demonstration projects and heat pump programs. She racked up more than a dozen trainings and certifications from the Building Performance Institute, the Environmental Protection Agency, and various equipment manufacturers, developing expertise in building envelopes, heat pumps, refrigerant systems, and health and safety.
In this piecemeal way, Liu created the job of the electrification contractor from the ground up. By the time ConEd was preparing to launch the Electric Advantage program, Liu had the only contracting business in the area that was essentially purpose-built to take it on.
On a recent Thursday morning in Croton, New York, a suburb of New York City, the show was behind schedule. Liu and I pulled up to a two-family house at the top of a hill to oversee what was supposed to be the “grand finale” day of an Electric Advantage-funded retrofit.
In this case, workers had already put in a new electrical panel, minisplit heat pumps, and a heat pump clothes dryer. Now, electricians would rewire the kitchens with 220-volt outlets for new induction stoves, while a father and son duo of plumbers would put heat pump water heaters in the basement, and a weatherization team would spray insulation around the perimeter of the basement roof and attic floor.
While still sitting in the driveway, Liu called PC Richard, the appliance store, to check on the stove delivery, but the sales rep on the other end was confused — she didn’t have anything scheduled. Liu kept her cool and worked it out, setting a new delivery date for the following day. She turned to me, with sympathy, to let me know this meant I wouldn’t get the denouement she had promised — the cutting and capping of the gas line. She made sure the plumbers could come back on Friday to finish the job.
The planning for this project began many months before, with a knock on the door from a man named Mark Brescia, who manages Electric Advantage for ConEd. Brescia does all the initial outreach, making house calls, phone calls, and sending emails, trying to sell homeowners on the idea. Part of the challenge is that in most cases, unless 100% of the buildings served by a given gas main agree to participate, the company can’t move forward because it won’t be able to retire the pipe. The majority of successful Electric Advantage projects to date have replaced gas mains that were serving a single building.
The company doesn’t sell the program to customers by talking about climate change or emissions. Instead, Brescia explains that the money that would have been spent digging up a gas pipeline could instead be used to buy them brand new appliances. “Customers are excited about the opportunity to make their everyday living more comfortable,” Brescia told me when I asked what the biggest selling point tended to be. They also “no longer worry about having to spend money to replace equipment when it fails.” If the building owner is interested, the next step is for them to schedule a visit from Liu, who does a site evaluation and budgets the job.
Survey data collected by ConEd shows that the most common reason customers decline to participate is a preference for gas cooking. The second is fear of higher electric bills. ConEd makes no guarantees to customers that their overall bills will go down if they participate, but by pairing the new appliances with air sealing and insulation, it tries to ensure the homes will run as efficiently as possible. Liu does her best to provide customer education, walking them through how to operate their heat pumps correctly — running the devices consistently, rather than turning them up and down or on and off, which uses more energy. Customers can also opt in to a special ConEd electricity rate that can save heat pump customers money if they run their systems this way.
“Many customers are still learning about the superior performance and convenience these technologies offer,” Brescia said. But there are also other bottlenecks to expanding the Electric Advantage program. Under New York law, if customers want to keep their gas service, ConEd must oblige them. So unless and until legislators change this “duty to serve,” the program will be hamstrung by customers who turn it down.
The program also currently only targets replacement of leak-prone “radial” mains — pipes that connect to the wider gas distribution system on just one end — as these can be removed without affecting system safety or reliability. The path to expanding it beyond these is uncertain because, as currently structured, that would start to put an untenable burden on customers.
Whether the money goes to a new gas main or a home electrification project, it comes from ConEd’s gas ratepayers through their bills. Whenever ConEd identifies a new batch of mains that meet the program’s specifications, it must submit a benefit-cost analysis to state regulators for approval to pursue the projects before it can begin reaching out to homeowners. In the most recent batch submitted to regulators, for example, replacing the 26 mains identified would have cost nearly $8 million, while the estimated cost of electrifying the buildings served was around $6 million, plus another $1 million in electric system upgrades. The latter is obviously a better deal for customers, even if, as an incentive, ConEd earns back part of the difference as a bonus — also paid for by customers.
Since gas customers pay for the program, it doesn’t totally solve the problem of a shrinking number of customers covering these major investments, even if they are spending less than they otherwise would. And once the most cost-effective projects get taken care of, the expense of electrification will be harder to justify.
Growing the program also depends on having more contractors like Liu to implement it, Brescia told me. Liu has a proven track record of coordinating multiple trades, upholding standards, and educating customers. “Delivering an exceptional customer experience is essential to building trust and driving widespread adoption of electric appliances,” he said.
Throughout the day that I spent with her, Liu vacillated over the question of whether she should or even could expand her business. Working alone enables her to keep costs down, she told me. “I cannot afford to hire additional people,” she said, “because every extra bit of cash flow I end up generating as a profit gets fed to more jobs” — that is, more electrification projects. She also doesn’t want to take on a bunch of high interest debt in order to front more capital to take on more projects.
At other points, she talked about scaling as both important and inevitable. She believes in whole-home electrification — both as a climate solution and as a way to change people’s lives for the better — and wants to see other entrepreneurs like her, especially women, be able to pursue this as a career. She already gets more job leads than she’s able to pursue. She’s starting to think about other fundraising options, such as finding private investors.
Liu also recently started working with a Columbia University masters student to develop software that would help manage and automate all of the “mind-numbing, insane amounts of reporting, submissions, and invoicing” she has to do. Although she already does all of the administrative work digitally, the process has only gotten more arduous as the various programs and companies she works with frequently change what and how she has to report back, whether due to shifting policies or just a round of McKinsey-ification. This is part of what prevents her from being able to take on more work, since all the bureaucratic overhead makes it harder for her to fully close a job and get paid.
Although it’s still very early in the process, her hope is that this kind of software solution could also make it easier for others to get into the field.
“I actually really think this is a very suitable career for every eight-year-old little girl who wants a Barbie’s dream house,” she told me. “If every woman can run a $10 million electrification business, it’d be great. I think we’ll get a lot more done.”
Log in
To continue reading, log in to your account.
Create a Free Account
To unlock more free articles, please create a free account.
Roads bring people, and people start fires.
The United States has more roads than you could possibly imagine. Eighty-three percent of the land in the Lower 48 lies within one kilometer of a road; if you’re seeking isolation, the furthest you can get away from one is likely only about 25 miles, in a far-flung corner of Yellowstone National Park.
The Trump administration wants to build even more. Earlier this week, the U.S. Department of Agriculture filed to rescind the nearly quarter-century-old Roadless Area Conservation Rule, which protects about 45 million acres of pristine national forest lands from the construction of — and dissection by — new permanent roads. The USDA’s given reason? That new roads will provide the access forest managers and fire practitioners need to better prevent wildfires in the nation’s most remote locations.
Fire ecologists immediately cried foul. Researchers have long understood that roads enable wildfire ignitions by bringing people — who are responsible for starting nearly 85% of fires — into the landscapes. Just this past January, new research found that wildfires ignited four times more often within 50 meters of a road than in an untracked, intact forest. “The notion that you can prevent fires by building roads seems to me precisely backwards when you look at what the science says,” Ben Goldfarb, the author of the road ecology book Crossings, told me.
But this past spring, Americans got a good idea of what wildfires look like when there aren’t roads around. Lightning storms in Northern Ontario ignited fires in an area so remote that officials found it “impossible to get firefighters on the ground” to fight them, per The New York Times, or even to react early with airplane water tankers. The result? More than 1.8 million acres burned in the province so far this year, with the resulting smoke causing the Midwestern U.S. and New England to experience some of its worst air pollution in decades.
“There’s a duality — roads are neither necessarily good nor bad from a fire perspective,” Eric Kennedy, an associate professor of disaster and emergency management at York University, told me. “They bring opportunities for ignition and they bring opportunities for firefighting.” Those opportunities include the aforementioned access for fire personnel, as well as serving as a fuel break so crews can gain a foothold against an approaching conflagration. In a populated area, more roads can also mean more evacuation routes when there is a disaster, preventing potentially deadly traffic jams.
Forest defenders were already suspicious of the administration’s motivations when it comes to wildfire policy. “There’s all of the Trump administration directives to increase logging on public lands, which rescinding the Roadless Rule helps to facilitate,” Goldfarb noted. Environmental groups have pointed to attempted legislation such as the Fix Our Forests Act, which removes obstacles for forest management methods, including timber harvest, as another example of how the administration is allegedly using wildfire as a cover to cut down and sell more trees.
Viewed in the context of recent changes by the administration to weaken the Endangered Species Act — namely, narrowing the definition of “harm” to a species to exclude disturbances to its habitat — rescinding the Roadless Rule can appear to follow a kind of rapacious internal logic that “wildlife doesn’t need habitat, and we can build roads wherever we want to disrupt” the forest, Goldfarb went on.
Fires igniting in remote areas is also not a new problem. Agencies adapt to the fire conditions in their areas, such as Quebec, which has an entire apparatus for fighting fires in tractless wilderness, including shuttling in fire crews via float plane. “You can fight fires via helicopter. You can also build temporary roads under the Roadless Rule,” Goldfarb said. As one Montana-based National Forest manager of 25 years recently wrote for a local newspaper, in his experience, “the Roadless Rule doesn’t pose an insurmountable barrier to good land management; it simply requires baseline analysis and thought before impacting the landscape.”
Those who are cynical about the Trump administration’s motivations also pointed me toward the grandiose scale of the Roadless Rule rescission. Fire managers frequently talk about the need for tailored, local, and precise responses to America’s wildfires, which run the gamut from grass fires to chaparral fires to forest fires in regions that both do and do not have histories of regular burning. Policymakers would more appropriately approach wildfire management fireshed by fireshed, they say, and through proposed management plans. Perhaps most notably, the Roadless Rule protects about half of the nearly 17 million acres of the Tongass National Forest, a temperate rainforest and one of the wettest locations in North America, which “does not experience wildfires like those in other places,” the Alaskan environmental conservation group SalmonState wrote in a statement with other advocates and business groups.
Most cynical, though, is the argument that the Trump administration is proposing rescinding the Roadless Rule at the same time that it has gutted the Forest Service that is supposed to maintain all those roads. The agency already struggles with an overwhelming backlog of maintenance projects, from washed-out bridges to erosion problems that impact the water quality in drought-stressed areas. If the USDA were really interested in using roads to combat wildfires, the line of thinking goes, then it would be investing more in the Forest Service, people told me, not less.
“The wildfire challenge really calls upon us to be able to hold different dimensions and different layers and seemingly contradictory ideas at the same time,” Kennedy said, again emphasizing that one can make the case that roads have benefits in certain contexts and scenarios. But while there may be a valid line of debate about when, where, and how roads can help with wildfire management, using the cudgel of a rescission, it doesn’t appear to be one the administration is interested in having.
The facility will power OpenAI’s 10-gigawatt data center in Pike County, Ohio.
The Trump administration aims to complete its environmental review of what would be the biggest fossil fuel power project in the country in just a few months, Heatmap has learned.
This news follows Monday’s announcement from OpenAI that it intends to lease a new 10-gigawatt data center under development in Pike County, Ohio, financed by a mixture of money from a SoftBank subsidiary and the chip company Nvidia. This AI hyperscale facility — known as the PORTS-Pike project — is expected to draw power from the largest gas power facility ever built in the United States, a 9.2-gigawatt facility sited on federal lands that would be built and owned by the Energy Department.
According to OpenAI, the data center campus will be built and started up in phases, with the first 800 megawatts starting construction this year and operational in 2028. That first phase will rely mostly on existing power infrastructure operated by AEP Ohio. How things progress from there will depend at least in part on the permitting and construction timelines for the new power plant.
Building large infrastructure of any kind on federal land or with significant federal investment typically triggers a review under the National Environmental Policy Act. I’ve been curious to find out what kind of review this particular project was going to get, especially after the administration allowed a NEPA review for a solar project to be repurposed for a data center on federal lands earlier this year.
Turns out some information about the PORTS-Pike permitting process is public. Before OpenAI confirmed its involvement with the site, the Trump administration added the project to the federal FAST-41 permitting dashboard, where it posts regular updates on the timeline for getting federal sign-offs. Per the lone federal notice available about the PORTS-Pike project, it will include “several data center buildings and power plants.” That will require at least two federal greenlights: an Army Corps of Engineers permit and approval from the Fish and Wildlife Service, which is being consulted about potential endangered bats in the project area.
The NEPA permitting work for this historically large data center-plus-fossil fuel power project began on July 10 and will conclude on December 23, the day before Christmas Eve, according to the Trump administration’s estimates. This comes after paperwork to begin the review was submitted to the Army Corps in May, per the federal notice — a total timeline of about seven months.
Those familiar with NEPA and the debate over permitting reform will likely be surprised by the speed of this review. It’s moving fast in part because the project is receiving just an Environmental Assessment, the lesser and smaller type of analysis than the EIS. I do not know why the government decided to take this route because the government’s NEPA review determination is not currently public, but I have asked the Army Corps to explain this move.
I’m not sure exactly how air permitting will fit into this NEPA review, as the Clean Air Act isn’t listed as a review step on the federal dashboard. The Ohio EPA has primary authority over permitting projects like these under the Clean Air Act, and I’ve reached out to them to confirm whether PORTS has submitted a permitting application. The state agency’s permitting database does not have any information on air permitting for the project, though it does include reports from third-party consultants confirming wetlands and protected species warranted reviews from the Army Corps and Fish and Wildlife.
Lastly, these timetables are not sacrosanct. Under the Fiscal Responsibility Act of 2023, agencies are supposed to complete environmental assessments within one year, but nevertheless they regularly fail to meet them. The White House’s Council on Environmental Quality said in a report to Congress last year that from mid-2023 to mid-2025, the Army Corps was the agency that most often missed these statutory NEPA deadlines for environmental assessments.
Still, news of this speedy review for a priority Trump project is sure to excite pro-data center advocates who see expedited construction as an imperative in the global AI arms race. It’s also guaranteed to put a foul taste in the mouths of environmentalists already frustrated by federal revisions to NEPA regulations they say elide analysis of climate impacts.
What’s undebatable in all this is that, as my colleague Robinson Meyer wrote, the PORTS project could ignite a new era of mega-gas plants. This permitting timeline couldn’t be more important for the future of the data center boom — and the nation’s greenhouse gas emissions.
SB Energy, the SoftBank subsidiary behind the data center project, did not provide comment before publication.
A new front opens in the data center wars.
A series of lawsuits filed in federal court asks a big question – are data center moratoria constitutional?
In early August, data center developer DC Blox sued the city of Nashville in federal court to overturn a zoning moratorium stopping them from building a hyperscale facility adjacent to the city zoo. “The Data Center Moratorium, moreover, is a targeted attack against DC BLOX, in violation of federal constitutional protections,” the suit argued, claiming that it defied the corporation’s due process and equal protection rights.
Around the same time, another developer – Wixom Industrial One – filed a federal lawsuit against the city of Wixom, Michigan, to try and “invalidate the city’s illegal police power moratorium” blocking their data center.
These two cases were far from novel or the first of their kind, and they’re now a fresh front in the battle over hyperscale data centers. At least that’s what some who work on these cases say: In April, attorneys with the law firm Vorys published a “client alert” asserting “many moratoria may be vulnerable to statutory, procedural, and constitutional challenges.” The attorneys advised that constitutional arguments against moratoria “may be stronger where a government singles out data centers without a sound factual basis, treats similar land uses differently without a reasonable basis, or adopts a restriction driven more by political pressure than by defensible planning or regulatory objectives.”
Months later, according to court documents, the Vorys attorneys who authored the alert now represent real estate firm Thor Equities in a federal case against the Ohio city of Urbana, arguing the city’s decision to reject their data center project broke “fundamental protections” under the U.S. Constitution. (Vorys and Thor Equities did not respond to requests for comment.)
It’s unclear how many of these kinds of cases have been filed to date. Data on federal court cases is quite opaque. But legal experts and industry attorneys tell me we should expect them to be on the rise as developers seek whatever tools they can find to get projects built.
“Bringing a lawsuit like this is fairly cheap, something they can do at a relatively low cost, and imposes a real cost on local governments to defend themselves,” said Daniel Metzger, director of the Cities Climate Law Initiative at Columbia Law School’s Sabin Center. “The cases out there will be bellwethers. And if successful, there’ll be a lot more of them.”
What developers probably want looks a lot like Hill County, Texas, where an LLC proposing an $80 million data center project was stymied in May by the state’s first countywide moratorium. (It predated Governor Greg Abbott’s temporary freeze of data center development in Texas by three months.) Within a period of only a few weeks, the LLC sued and the county rescinded the pause on approvals. The case was dropped a month later. Local reports state the county had to afterwards pay the corporation $100,000 in legal fees – a drop in the bucket compared to what a drawn-out court battle would have cost the rural county.
Metzger said whether the companies will win these cases is ultimately not the point – their goal is to win a finished data center, not a judicial ruling. By filing expansive litigation in the national court system, a hypothetical developer can exhaust the coffers of a city or county with legal expenses that are chump change compared to would-be billions in private financing for compute infrastructure.
“These lawsuits may deter some local governments from taking steps to oppose data center development, just because of the cost it would impose on them to defend a lawsuit, even if they know they have a strong legal basis for the action they want to take.”
Those I spoke to in private practice about data center developers’ constitutional arguments agreed with Metzger’s assessment that it’s too early to tell whether the companies will win. Generally, they said, a city or county will win this kind of case if it demonstrates a rational basis for its decision-making and courts typically want to defer to governmental autonomy. The onus will be on the developers to prove a moratorium was meritless – that’s the due process challenge – or unfairly targeted their industry in a way other sectors don’t face, which is the basis of the equal protection claim.
“What they’re saying is in essence that these actions the municipality is taking are arbitrary and capricious, which is one of the sort of catch-all standards,” Thomas Allen, a partner at K&L Gates, told me. “They say the laws lack a rational basis. And then they make equal protection claims, saying data centers are being singled out because of political concerns as opposed to actual things relevant to the legislature’s directive. They’re not basing their decisions on the underlying merits of the project but reacting to political pressure.”
“It’s a reliance question and it’s about the treatment of their projects,” added Laura Morton, an attorney with Ashurst Perkins Coie. “It’s always been important to talk about and engage with communities where your infrastructure is planned. Here, I think this is the developers going in, maybe having conversations, and then suddenly they’re getting a reversal after already receiving these approvals and making investments based off of what the conversations and rules were.”
The likelihood of these constitutional challenges reaching higher courts anytime soon is quite low. It’ll be a long time before we see one of these cases reach a verdict, let alone some kind of appeals process come to fruition. Nevertheless, the new legal ambiguity around these local restrictions is an important new facet of the data center wars, including for developers.
“Companies want to act within the law to get [things] done, so whatever tactics they can do to help get the project over the line that are legal and ethical, they may try those,” Allen told me. “And if that includes the pressure of a lawsuit, that’s a judgment they’ll have to make.”