There are a lot of legitimate issues about data centers out there, in particular the lack of local input and decision-making, the abrogation of property rights and the effective taking of property—not to mention the formal taking of property—plus all the utility rates, water, and eminent domain concerns, and more.
As Liberty Matters reported several weeks ago, the public has been pushing back around the country and winning many of these battles at the local level. That push, which is just now beginning to jell at the state level, at least nascently, is a hopeful sign, made even more hopeful by a growing grassroots movement that is uniting constituencies across the political spectrum.
In the last few weeks, though, creeping in from the corners of the progressive press, is a disturbing argument that is callous in its lack of any real concern about data centers and their impact on communities, disingenuous in its motives, and malicious in its historical accuracy.
Leave it to the environmental left to act just that way. What’s happening is that progressives are using legitimate concerns about data centers as a vehicle to argue for restoring the expansive federal authority over private land and water that the Supreme Court rejected in 2023, in a case known as Sackett II. That 5-4 decision reined in federal jurisdiction over the waters of the nation and slammed at least one door shut on the federal government’s long expansive fight for control of all America’s land and water—absolutely protecting property rights in so doing.
In Politico last week, though—and now in multiple stories in the leftist and corporate media—progressives are blaming that decision for the glut of data center projects and proposed projects everywhere. In this viewpoint, the court’s conservative majority, the GOP writ large, and the Trump administration are all demons beneath the dome of data center influence.
Here’s how Politico put it last week: “A court ruling shrinking the scope of the Clean Water Act has allowed new data centers to speed through the federal permitting process. Communities are feeling the effects. … thanks to a 2023 ruling from the Supreme Court that dramatically shrank the number of streams and wetlands protected by the Clean Water Act. Once one of the most important permits that virtually all construction projects needed, now everything from subdivisions to oil pipelines to data centers can be built without federal water pollution permits if the streams and wetlands they are filling in or contaminating fall outside the law’s scope.”
The implication is, of course, if we just restore the federal jurisdiction over waters that existed prior to the 2023 ruling, the government will step in as saviors and shut down the data center explosion. The other implication is that people should vote for a president and a Congress that would do just that.
Of course, if we are going to restore that jurisdiction, we should probably ask what that jurisdiction was. In a nutshell, past Democratic administrations took an expansive view that granted the EPA authority over essentially every mud puddle in your yard and every roadside ditch in your county, while Republican administrations took a much narrower view that restricted federal jurisdiction to traditional navigable waters and their adjacent wetlands. The states managed the rest.
Specifically, prior to 2006, the EPA and the U.S. Army Corps of Engineers followed a jurisdictional boundary that viewed federal waters as interstate or traditional navigable waters, their tributaries, and adjacent wetlands with a continuous surface connection to those waters. Starting in 2006, after a complicated court decision, the court applied a “significant nexus” test that liberalized federal jurisdiction over wetlands.
And then came the Obama rule in 2015, which gave federal agencies virtually unlimited authority to regulate any low spot where rainwater collected, including common farm ditches, ephemeral drainages, agricultural ponds and isolated wetlands found in and near farms and ranches, no matter how small or seemingly unconnected they might be to true “navigable waters.”
The first Trump administration repealed the Obama rule and essentially restored the old standard. But then came Biden, and his rule was the heir apparent to Obama’s. Specifically, his rule adopts a “significant nexus” test for determining when land or a water feature is subject to federal regulation under the Clean Water Act.
In essence, the federal government could claim jurisdiction not only over navigable waters but water bodies that the EPA determined had a substantial connection to those waters. That dramatically expanded federal jurisdiction over streams and wetlands, including on private property, and encroached on the states’ authority to regulate land and water within their borders. By changing the definition, the Biden administration created regulatory uncertainty and added confusion and cost to infrastructure, transportation, and energy projects.
And who decided what constituted a significant nexus? Why, bureaucratic scientists, of course. The test, such as it was, gave federal bureaucrats control over determining when temporary, tributary, and other upland waters were regulated, and made farmers, ranchers, developers, builders, and other landowners more reliant on the shifting interpretations of the EPA and the U.S. Army Corps of Engineers.
Republican Sen. John Thune of South Dakota called the rule a “thinly thinly veiled land grab”:
“Like President Obama before him, President Biden is trying to greatly expand the reach of the federal government into the lives of farmers and ranchers,” Thune said. “Opening up nearly every body of water to federal jurisdiction would be a nightmare for property owners and producers across the country.”
That nightmare is exactly what the Supreme Court tossed in its now derided 2023 decision, and it is the nightmare that the progressive left is pushing for in its most recent call to fight data centers.
Not hyperbole
Ah, some might ask, but isn’t it hyperbole that the federal government wanted to extend their authority so far as to even control the puddles in a backyard and shallow water in roadside ditches? That would destroy the livelihoods of countless families in the name of government control, and it’s the stuff of conspiracy theories, right?
Wrong. That’s exactly what the government wanted, and, for any doubters, people should know exactly what their government was doing and to whom they were doing it. In Michigan, to cite just one example, the EPA issued guidance to staff that water separated by physical barriers such as roads should be considered one jurisdictional water; it also directed staff to continue to regulate wetlands whose only connection to a jurisdictional water was adjacency to another wetland.
Over in West Virginia, property owner Ron Foster is still appealing a district court order that allowed the EPA to ignore the Supreme Court’s Sackett decision.
“In Sackett II, the Supreme Court clearly defined how the federal government can enforce the Clean Water Act,” said Frank Garrison, an attorney at Pacific Legal Foundation (PLF), which is representing the West Virginia property owner. “But the EPA has continued to ignore those guardrails and drive straight off the cliff. The EPA must follow federal law, not make up the rules to pursue its own agenda. Our client is fighting to see that it does.”
In the case, according to the PLF brief, Ron Foster bought 90 acres of commercially zoned land near Parkersburg, West Virginia, in 2009 as a retirement investment. A year later, without permission, EPA inspectors charged onto his property and accused him of violating the Clean Water Act by filling four natural dips that occasionally channeled rain or snowmelt.
After 15 years of legal battles, a federal court ruled in favor of the EPA, ordering Foster to pay $800,000 in fines and mitigation costs.
As PLF observes, all that was before the Sackett ruling. Indeed, such cases aptly demonstrate why the significant nexus test that had reigned before Sackett had to be put out to pasture: when the government considers small natural hollows or dimples that occasionally fill up with rain to be waters subject to federal regulation, you know they have gone off the rails.
As an update, that case is still ongoing. An appeals court let Foster off the hook for three of the four dimples but kept one intact as a “waters of the U.S.” and left standing most of the judgment.
And then, of course, there was the original Sackett case, which was even more absurd. In that case, the federal government maintained that the location of Sackett’s proposed house was in fact a navigable water subject to federal regulation.
Here’s the punchline: None of the Sacketts’ property contained any stream, river, lake, or similar waterbody. No water, period. It was dry as a bone, an “imaginary water.”
So how does dry land become navigable water in the eyes of the EPA? Just jump the shark and it’s perfectly clear: Over yonder somewhere was Priest Lake, a truly navigable water, and of course a non-navigable creek connected to Priest Lake, which in turn connected to a non-navigable, man-made ditch, which in turn connected to wetlands, which in turn were separated from the Sacketts’ lot by a 30-foot-wide paved road.
Those latter wetlands, the government reasoned, were “similarly situated” to dry wetlands alleged to exist on the Sacketts’ lot, though nobody could see them, and those imaginary wetlands on the Sacketts’ property, when aggregated with the wetlands across the street, formed a “significant nexus” to Priest Lake.
So you can see the problem with the expansive Clean Water Act authority that the left insists is necessary to stop data centers—and pretty much all of productive life along with them.
The absurdities in Foster’s case run pretty deep, too. In this instance, the EPA, through guidance issued before Sackett, found that a small intermittent stream on his property—with water about four months of the year—exited the property’s western boundary and entered a neighbor’s hayfield. That hayfield, the EPA alleged, joined a creek, which joined another tributary, which flowed into a navigable water.
According to the EPA, that made the small stream, and three others on Foster’s property, regulable.
The logical flaw
The problem is the binary assertion that either we have greater federal jurisdiction over water—as in all water—or we have certain calamity, as if Sackett eliminated all environmental regulation of those waters. It most certainly did not. Instead, it shifted many permitting decisions back to states where they belong. State and local governments still regulate wetlands and development. The decision was about who regulates—not whether regulation exists.
None of this is to downplay the threats to property and prosperity that data centers can and are posing to communities and private property. It is also true that many states and local communities are behind in the fight to protect themselves against hyperscale data centers, and so an important mission now is to spread the word about how people can demand a seat at the table.
But it’s also imperative that we don’t use one land grab to justify another. We cannot allow the left to turn the data center debate into an excuse for restoring the expansive federal authority over private property that the Supreme Court rejected.
