What's in Sen. Brown's proposed ‘Residents First' data center legislation?

As data center proposals flood Northeast Pennsylvania, state Sen. Rosemary Brown proposes legislation that would limit large-scale campuses to industrial areas while requiring more information on projects before a developer can ever apply in a municipality.

"If you look at a reasonable approach, you say, ‘This is not right,'" Brown said, describing large data center campuses proposed near residential areas. "It's just not how people want to live, and it's not what people expect when they move to an area like ours."

Local communities have had to navigate for just over a year and a half a rapidly expanding industry looking to build resource-intensive data centers across commercial, industrial, residential and even conservation zones. Within that rush, Pennsylvania's 40th state Senate District has emerged as a prime target for development. The district encompasses most of Lackawanna County's Midvalley, its Upvalley and North Pocono regions; part of Wayne County; and all of Monroe County.

The 40th District is home to every large-scale campus proposed in Lackawanna County, spanning from the Project Gold data center campus along Interstate 380 in Clifton and Covington townships to 51 proposed data centers and an associated power plant in Archbald.

"It's overwhelming," said Brown, a Republican from Middle Smithfield Twp. "It has moved very fast."

Constituents' concerns include data centers developed in residential areas, and the impacts of data centers on the quality of their water, utility prices and utility availability, the senator said.

"They're very reasonable concerns," she said. "It's about things in their backyard."

In an effort to keep data centers out of residential areas, and to give municipalities time to regulate them, Brown unveiled a four-piece "Residents First" legislative package in February and co-sponsored a bill from state Sen. Katie Muth, D-44, calling for a three-year moratorium on data centers.‘Even more industrial'

The "Residents First" package consists of four separate bills, none of which has been formally introduced in the Senate.

According to Brown and her sponsorship memos, the bills would:

• Prohibit data center development in residential zones and limited hyper-scale (defined as 100,000-plus-square-feet) and major data center developments to industrial and mining zones. Micro data centers, similar to a single office building, may be constructed on a commercial property, but only with necessary buffers to protect residential areas.

• Mandate an independent, third-party, developer-funded water analysis and study that the developer must give to its host municipality no later than 30 days before submitting a formal development application. Data centers would be required to provide data on anticipated water usage, water quality, short-term and long-term sustainability of water supply, among other parameters. The data would have to look at a 20-mile radius around the data centers, with the analysis/study publicly available upon request. If a data center is developed, it will have to submit a five-year, third-party post-development analysis and study, comparing it to its pre-development analysis.

• Require developers to submit "will-serve" letters from water, sewer, electric and fiber infrastructure organizations showing they have resources available to handle a data center campus before submitting any formal application.

• Direct the Pennsylvania Legislative Budget and Finance Committee to study emerging data storage technology and evaluate its long-term viability, including whether current technology may become obsolete and if emerging alternatives may reduce environmental and resource impacts.

Brown believes data centers are best suited for industrial land, with campuses having "even stronger utilization of resources than what we're normally used to in industrial (areas)."

"It doesn't even come close to being something that should be put anywhere near a resident, a park, or right in the middle of quaint little Archbald," Brown said. "To me it is just common sense, even if you take out all of the other technicalities of everything that local government does. Industrial is industrial is industrial, and this is even more industrial."

Archbald's Eynon Jermyn Road corridor has emerged as a prime example of data centers attempting to mingle with residents.

There are 30 proposed data centers within a roughly 1-mile stretch, including a nearly 620,000-square-foot data center, plus a 400-megawatt natural gas power plant sought by a data center developer. Those developments are close to Archbald's Staback Park, the Archbald Pothole State Park, residential housing developments, a mobile home park, low-income housing, a daycare, an upcoming skilled nursing home and assisted living facility, and the Valley View School District's intermediate, middle and high schools.

Brown wants to require the water studies and utility letters to address what she calls a lack of answers from developers.

"Without honest and scientific answers, no one can feel confident about anything," she said. "Let's make sure that the water usage is there, the quality of water is protected."

To look at the future of the industry, the state Legislative Budget and Finance Committee study would investigate future technology that could change how data centers operate, Brown said, theorizing that advancements could prevent massive data centers from being built across the country.

"We have these huge data centers being proposed, but could it be in two years, three years, something comes out that holds data in a much more efficient manner?" Brown asked. "My guess is probably that's going to happen with the way that we have seen technology grow with everything else."

A Gallup poll released in May found that 71% of Americans oppose the construction of local data centers, with 48% of respondents strongly opposed.

Brown initially co-chaired a Senate Majority Policy Committee on data centers in August with state Sen. David Argall, R-29, at Valley View High School. The three-hour hearing painted data centers in a favorable light as a panel of 19 subject matter witnesses largely touted the benefits of the industry.

Brown said she held the hearing to educate herself, municipal leaders and residents.

"I came out of that hearing really not thrilled with some of the information that I had," she said. "I didn't feel confident."

‘Do it right'

Brown contrasted her legislation with Gov. Josh Shapiro's recently announced "Governor's Responsible Infrastructure Development" standards, or GRID, that require data center developers to comply with new, stricter guidelines to receive support from the state. The Democratic governor traveled to Archbald and Blakely in May to unveil the standards, which are not mandatory. Instead, the program incentivizes developers with tax benefits and faster permitting.

Developers who apply for GRID certification must outline how they will protect energy affordability, promote transparency and community engagement, support the workforce and economic development, and protect the environment.

The standards reflect some of the conversations surrounding utility usage and the environment, but they're not mandated, Brown said. Her legislation would require data centers to comply.

"It's not asking you to do it right," she said. "It's saying, ‘You are going to do it right, and you're going to do it right because it's the right thing to do.'"

Shapiro's standards took a major step forward Wednesday when state representatives voted 134-68 to pass House Bill 2650, which would codify GRID standards into law. If it passes the Senate, the legislation would replace an existing sales tax exemption on data center equipment with a GRID certification framework, according to the governor's office.

Rosie Lapowsky, a spokeswoman for the governor, cited an unwillingness from leadership in the Republican-controlled state Senate to pass any data center legislation.

"Governor Shapiro's GRID standards are a real proposal with bipartisan legislative momentum to establish clear, commonsense requirements for data center developers, including bringing their own power, being transparent with local communities, supporting workers, and protecting natural resources," Lapowsky said in a statement. "If Senator Brown is serious in her position and wishes to do something different, she should actually work with her leadership in the State Senate - who have stated they will not be moving any data center regulation legislation - to get something done."

Brown contends the state has not adequately supported communities.

"The state has not done what it needs to do at this point, which is why, I think, my voice has become very strong as far as, ‘Pay attention - pay attention to what is going on,'" she said.

‘Critical local oversight'

Pennsylvania needs a moratorium on data centers to give itself time to put up guide rails at the state level, Brown said. A moratorium would also give municipalities more time to address the industry at the local level, she said.

"It's a lot of very detailed information for a township supervisor or borough council member that have other jobs," she said.

Introduced June 4 by Muth, Senate Bill 1359, which was co-sponsored by Brown and Sen. Carolyn Comitta, D-19, would create a 36-month moratorium on hyperscale data centers and the infrastructure needed to power them.

The moratorium would attempt to halt all hyperscale projects by preventing the state, governmental agencies, political subdivisions and public benefit corporations of the state from issuing permits or approvals for the siting, construction or commencement of data centers, regardless of when they received the application.

Brown acknowledged the uphill legal battle it would face trying to retroactively stop projects.

"Retroactivity in the law is very difficult - it usually doesn't happen," she said. "At this point, I hope that the municipalities have been working pretty hard across the region."

Municipalities in Pennsylvania are required to allow for every lawful land use, from data centers to power plants. Failing to include a use in their zoning ordinance exposes a municipality to legal challenges over exclusionary zoning.

Alternatively, data center developers have capitalized on unclear or overly permissive zoning language to propose data centers in areas where municipal governments didn't necessarily intend them.

Also on Wednesday, the state House nearly unanimously voted to pass House Bill 2496, which would amend the Pennsylvania Municipalities Planning Code, or MPC, to allow municipalities to put a six-month pause on data center proposals. Co-sponsors included state Reps. Kyle Mullins, D-112, Blakely, and Kyle Donahue, D-113, Scranton.

"Large-scale data centers cannot be allowed to bypass community scrutiny," Mullins said in a statement. "With development surging across Pennsylvania, this bill ensures critical local oversight and forces transparency before any projects are approved. It ensures that municipalities can set strict expectations and that decisions of this magnitude are made openly and in the public interest."

Good planning takes time, and local governments deserve the ability to make informed decisions, Donahue said in a statement.

"Municipal officials across Pennsylvania are being asked to make decisions about massive data center developments without having the tools, information or local regulations in place to properly evaluate them," Donahue said. "This legislation gives communities the opportunity to take a brief pause, gather the facts, engage residents and develop thoughtful ordinances that protect public safety and quality of life before these projects move forward."

The House bill, which does not use the term moratorium, would give local governments the power to adopt a resolution imposing a 180-day pause on the consideration of data center developments. Currently, a municipality's only way to buy itself time to amend its land-use laws to address new developments is through the curative amendment process, where a municipal government declares its zoning ordinance invalid and drafts a zoning amendment to cure the defect and regulate the new use. The curative amendment process also gives a town six months, but it can only be used once every three years, according to a news release from House Democrats.

Brown said she has instructed municipalities in her district that, if they don't have an ordinance in place governing data centers, they need to adopt one immediately - or seek their own moratorium.

"They need time to make sure they get this right," Brown said. "They cannot get this wrong, and we have seen the wrong already happen."

Challenger Brian Wrightson weighs in

State Sen. Rosemary Brown's Democratic challenger for the 40th District seat, Brian Wrightson, took aim at the timing of her legislation.

Wrightson, 57, a Jessup native living in Archbald, will vie for Brown's state Senate seat in November.

He called the state of data centers "absolutely horrible" in Northeast Pennsylvania.

"It's a travesty of what's going on," he said. "I don't blame the local councils and township supervisors at all for this. I blame the big corporate bullies that decided to pick on Northeast Pennsylvania."

He criticized Brown's Senate hearing on data centers in August for putting a positive spin on the industry, and the time it took to put together legislation after holding the hearing nearly a year ago.

"Rosemary could say all she wants that she's for us, she's going to sign on to a moratorium, she's for residents first, but where was she when this all began?" Wrightson said. "She wasn't for the residents, she was for the big corporations, and that's where her position now has changed."

If Brown supports a moratorium, Wrightson challenged that she should get Republican leadership in the Senate to put it to a vote.

"If that happens, great, and whatever the outcome is, we have to quasi live by that, right?" he said. "Don't talk - do."

In an emailed statement, Brown chided Wrightson for choosing to "play politics with this important issue."

"I was meeting with residents, municipal officials, community groups and experts to hear their concerns and learn about the challenges surrounding large-scale data center development long before Mr. Wrightson entered the conversation. During that time, I did not see him at a single community meeting - including the very meeting he now criticizes," Brown said. "While I appreciated the opportunity to hold a Senate hearing on this issue, I've stated before that it did not provide all the answers I had hoped it would. That is exactly why I continued working with residents and local officials to develop my comprehensive Residents First legislative package."

The senator described herself as a leading voice on the issue in the Pennsylvania Senate from the beginning.

"That leadership has resulted in meaningful progress, including the repeal of their sales tax exemption," she said. "Perhaps Mr. Wrightson should try standing up to his ally Governor Josh Shapiro and ask why he is fast-tracking data center development across the state while I am working across the aisle to protect communities."

Wrightson acknowledged he has not attended any of more than a dozen public hearings since January on data centers in Archbald, where he lives. He defended his decision, saying he'd rather stay out of the focus, educate himself and be an ally. He commended Lackawanna County Commissioner Bill Gaughan, county Controller Gary DiBileo and state Rep. Kyle Mullins, D-112, Blakely, for their testimony at hearings.

"To me, showing up at those meetings would have been me saying, ‘I'm here grandstanding and looking for votes,'" he said. "That's not me. I am not that kind of a politician. I'd rather show people by my actions and by my physical words, and not just showing up and saying, ‘Here I am.'"

If elected to the Senate, Wrightson wants to establish an independent statewide commission composed of affected residents, municipal officials, environmental experts and data center representatives. He also wants to explore the impacts of data centers on the agriculture and tourism industries.

He agreed that data centers should be restricted to industrial areas, though any legislation doing so should be well defined.

"I'm not opposed to development, and I'm not opposed to the job creation," Wrightson said. "It's the process, and where a lot of these places could come in and place them."

- FRANK WILKES LESNEFSKY

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