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Q&A

Why Data Center NDAs Are a Big Mistake

A conversation with Grant Gutierrez of Carbon Direct

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Why Data Center NDAs Are a Big Mistake
Heatmap Illustration

This week’s conversation is with Grant Gutierrez, head of community impacts at carbon management company Carbon Direct. This week Carbon Direct published a white paper Gutierrez authored on opposition around data centers he’s studied. His research reinforces much of what Heatmap Pro has uncovered, but I was particularly intrigued by a topline finding – that transparency is the most common thread in the 46 data center fights he looked into. Was he seeing what I’ve been seeing? So I asked him to hop onto a Zoom call and let me know his thoughts.

The following conversation was lightly edited for clarity.

If you were to explain the findings in your white paper to someone at a bar… how would you put it?

What I would say is that we were really interested in the kinds of concerns communities were articulating as they were opposing or resisting data center development in the U.S. To answer and explore those questions, we developed our own data center cancellation tracker where we looked for cases where we could find a strong correlation between cancelation or withdrawal status and opposition. Then we did high-level analyses of the demographics surrounding those data centers, using standard best practices from environmental justice methodologies and pulling sociodemographic and environmental burden characters from EPA’s EJScreen tool. We were mostly looking at public records. Press materials. City council meeting minutes. Things you wouldn’t have to dig too hard to find.

The kinds of communities we saw successfully resisting data centers tracked across the demographic middle of the United States – slightly more middle income, slightly more white than a majority of the American community, but mostly what you’d consider the average American community.

What is the intended audience of this paper and what are you hoping to communicate?

I think it’s important for data center developers and the capital behind them is that they need to move their engagement to early stage, responsible design. A second audience is regulators, city councils, and local zoning commissions about how to engage with developers and advocate for the right disclosure requirements from industry.

The key topline message is that developers who treat community engagement as a permitting formality instead of a critical early stage input are burdening communities, breaking trust. This is resulting in reputational risk for developers, stranded assets, losing capital – and the loss of future opportunities as developers want to build 21st century infrastructure.

Walk me through what you saw evaluating these projects. What’s the development pattern that leads to such opposition?

We saw five key themes. Some of them you might expect – concerns around natural resources, water impacts, electricity rates, land. The rural character came up quite consistently. And then there was a lack of transparency through the use of NDAs.

The NDA example I was surprised to see was the most consistent in all of our case studies. Communities are largely concerned with the process that unfolds as much as the impacts. That’s a very important signal that transcends political lines. Communities want to be heard, involved in the process. They want large infrastructural development with impacts to listen to their concerns. When those decisions are made behind NDAs or with no transparency or equitable engagement, communities quickly mobilize and organize at a hyperlocal level and are successful in opposing these data centers.

I know there are a number of companies out there – without naming names – that are putting responsible development principles forward. The ones we advocate for across our business, whether we’re working in carbon removal or other things. I see companies leading and saying, if we’re involved in this infrastructure, we are not going to sign an NDA. Those who are pushing forward renewable energy commitments, community benefit agreements, and local public-private partnerships are leading with transparency and equity in their engagements.

How any of this carries in the broader industry is yet to be seen.

In your report you point to various ways opposition can crop up to a project. One of those ways was due to the presence of co-located gas – you note that gas power at a data center engendered environmental opponents, which then strengthened those fighting a data center. Can you elaborate on whether you think a new gas power presence is making it harder to get a data center built?

The case you’re pointing to, that’s the Ballico case where on top of the data center there was a 3,500 megawatt co-located gas plant. That quickly led to major community concerns and a partnership with the Southern Environmental Law Center, which became the legal anchor for thinking through the opposition here and commissioned the technical evidence, and provided the legal [support] there.

You see a broad coalition coalesce around not only the data center concern but the climate concerns that arise. I wouldn’t be surprised if we saw a repeated concern around the expansion of fossil energy and combustion sources going hand in hand with community opposition and organizing on data centers. But that remains to be seen.

What in your research have you seen when you compare opposition to data centers and campaigns against, let’s say, fossil fuels? Or mining? Or renewables?

What I think about with data centers is they’re the highways of the 21st century. As we know through the highway projects in the U.S., there were major disproportionate impacts on communities of color. I think there’s potential for data centers if they follow that playbook to have that same impact.

When it comes to comparing these, that’s something I have not done yet. But I think there’s a few things happening. I think the scale and scope of the buildout is taking the American public by surprise. Articulation around impacts to natural resources and electricity prices in a heightened political climate and a difficult economy. It’s also the existential problem AI introduces, which is the role AI plays in society. This is unique compared to other kinds of extraction, which feed technologies already at play.

How do you feel about the fact that so many of us in energy, environment and climate are now talking about data centers all the time?

Never in my career, working in carbon removal and nature based solutions, I never thought data centers would be a major focus in my career as an environmental justice advocate and social scientist.

Data centers are probably emerging to be one of the biggest environmental justice problems of our time so while it’s not something I planned to work on, I am emboldened to see the response from the nonprofit community and others trying to wrap their heads around this. What is the right kind of information? What does the public need to know? How do we advocate for our communities and build the world we would like to build?

While data centers are moving fast, I’m encouraged to see communities organizing and advocating for their own needs as well. Over the next few years, the story will tell itself.

Last question – what was the last song you listened to?

DtMF by Bad Bunny.

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Q&A

GoodPower Is Sussing Out What People Actually Want from Data Centers

Talking with Leah Qusba, the CEO of GoodPower.

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Leah Qusba.
Heatmap Illustration

This week’s conversation is with Leah Qusba, CEO of GoodPower, which recently released a survey experiment you need to read. Conducted with Data for Progress, the project, published Monday, takes a unique approach to asking people why they opposed data centers for artificial intelligence and whether constructing renewable energy instead of gas power moves the needle at all in their support for AI infrastructure near them. Instead of just asking polling questions, they posed various hypothetical project designs to people — and the results were eye-popping. Turning to solar instead of gas? Might not be a panacea for gaining approval at the local level. Protecting electricity rates from going sky-high? Now that’s a way to get buy-in.

The following conversation was lightly edited for clarity.

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Hotspots

A First-Of-Its-Kind State of Emergency — Over a Permitting Pause

And more of the week’s top fights around development.

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The United States.
Heatmap Illustration/Getty Images

1. Umatilla County, Oregon – A small town in Oregon this week declared a state of emergency over fears that a statewide pause on data center permits will harm its economy.

  • Five of the six people on the Umatilla city council voted to adopt a resolution formally calling for a state of emergency “due to the threat of widespread financial loss.” Umatilla City Manager Dave Stockdale told the council before the vote that the data center pause enacted by Governor Tina Kotek puts millions in tax revenue at risk. Other city staffers told the council that current budget reserves are healthy, but this could complicate a bond for a new police station and delay executing their city’s master plan.
  • Umatilla is home to more than 20 data center projects currently operating or under development, equal to roughly one-fifth of the state’s data center sector. Oregon law expressly grants cities and towns permission to declare a state of emergency over “financial loss.” And the Umatilla resolution is a clear legal threat; its text calls for “immediate reconsideration” of Governor Kotek’s directive pausing data center permits and “authorizes the city manager to coordinate with affected governments and legal counsel to pursue appropriate administrative and judicial remedies.”
  • To the best of our knowledge, this is the first time a municipal government has threatened legal action or declared a state of emergency over a state-wide permitting pause against data center development. It goes to show that what comes around goes around.

2. Saratoga County, New York – Is Trump’s country music superstar-turned-power-project combatant John Rich preparing to debut a new song about solar farms, or something more?

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Spotlight

The Most Important Data Center Election You’ve Never Heard Of

The race for the top job in McCracken County, Kentucky, might hinge on the importance of a community benefit agreement.

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Paducah, Kentucky figures.
Heatmap Illustration/Library of Congress, U.S. Department of Energy

An election-season battle is brewing over what could be the nation’s first massive data center operating on federal land. And you almost certainly have never heard of it.

Come with me to McCracken County, Kentucky, just outside its largest city, Paducah, where the Energy Department is allowing new development at a large brownfield property. First constructed in the 1950s, the Paducah Gaseous Diffusion Plant was once the country’s only uranium enrichment facility, but it closed in 2010. Since then, and after years of cleanup, Paducah city officials and the McCracken County government have sought to revitalize and reindustrialize the site.

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