State, developers ask to delay public hearing on Project Jupiter air quality permit

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LAS CRUCES — After a tug-of-war over tight deadlines for a pending state permit for Project Jupiter, the data center’s developers are acknowledging more time is needed.

Consideration of an air quality permit for the massive and controversial data center in Santa Teresa appears likely to be delayed into the new year, when Gov.-elect Deb Haaland will take office and have her say of who leads the state agency in charge of the permit. The delay in the biggest regulatory hurdle for the project comes after revisions to plans for Project Jupiter’s fuel cell power plant last month.

The state Environment Department and Yucca Growth Infrastructure, the developers behind Project Jupiter’s microgrid, moved Tuesday to vacate a public hearing on the project’s air quality permit, which was set to begin Dec. 7 in Sunland Park.

Their motion marked the first time developers expressed a desire to delay the air quality permit’s timeline as the constructed buildings at the Southern New Mexico campus remain without power.

Oracle, the main company behind Project Jupiter, announced in October what critics saw as significant changes to the design of a Bloom Energy fuel cell plant. The company said the revisions would cut emissions by about 35%, while environmental advocates have referred to the changing plans as a “moving target” that warrant further scrutiny.

Attorneys for the developers did not respond to a request for comment Wednesday.

In the motion Tuesday evening, attorneys for the agency and the developers wrote the Environment Department needs extra time for a technical review of the revisions, but they have not specified when the state’s analysis could be ready.

Under the previously set timeline, the department would have been required to submit a notice of hearing, with a draft air quality permit attached, to newspaper publishers by Tuesday.

As Tuesday approached, it became clear the deadline, along with a hearing on the permit before the end of the year, was not feasible.

Attorneys representing the Environment Department wrote in an Oct. 22 filing that “material revisions at this late stage” meant the application was “not ready for primetime.”

However, they did not take concrete action to shift the timeline until Tuesday, the same day the draft permit was due.

While the contentious permitting dispute over Project Jupiter appears set to carry over into the next administration — which could prove less friendly to the project — it isn’t clear when the agency’s staffers expect to finish their review of the developers’ new plans. Haaland has said she plans to sign an executive order pausing large data center development on her first day in office, giving the Legislature time to develop guardrails for such projects.

Environment Department spokesperson Drew Goretzka wrote in an emailed response to questions Wednesday that given the “iterative nature” of the review, the agency “cannot currently give an estimate as to how long it will take.”

Goretzka noted the agency’s staff has been in regular correspondence with Project Jupiter’s developers since they revised plans for the generation facility last month, and that they have “continued to regularly provide missing information from the initial application in the weeks following.”

“The Department is still actively engaging with Yucca Growth Infrastructure to gather all necessary information to comprehensively ensure the draft permit both protects New Mexico’s air quality and can be enforced on by the State if needed,” he wrote.

Since the hyperscale data center was announced early last year, many elected officials, including those from the surrounding region, have soured on the project as concerns around water use and pollution, among other things, have driven opposition around the state.

State Sen. Carrie Hamblen, D-Las Cruces, was hopeful that a public hearing on the proposed permit would likely be pushed to the next gubernatorial administration, she said in an interview with The New Mexican on Tuesday.

“I think it’s going to be a different story once we get this new administration in,” she said. “I think the governor-elect is going to listen to the people in their communities.”

Santa Fe-based environmental advocacy group New Energy Economy filed a motion to dismiss the permit application Wednesday, arguing that key details necessary for permitting the project are still missing.

“This is no longer a question of whether [the Environment Department] needs a little more time,” the group’s executive director, Mariel Nanasi, wrote. “It is a question of whether an applicant may fundamentally change the facility it seeks permission to construct, fail to supply information necessary to evaluate that facility, and then demand that the agency and intervenors perpetually reorganize the adjudicatory process around its shifting proposal.”

The project’s opponents have also taken issue with the math behind the developers’ emissions modeling. Bloom Energy, the company producing the fuel cells that are set to power the data center, based its projections on a test of one 65-kilowatt cell scaled up by a factor of 37,800, according to the administrative record.

That means even a small mistake could be magnified almost 40,000-fold, Colin Cox, a New Mexico-based attorney for the Center for Biological Diversity, argued during a recent hearing.

Other questions range from the lifespan of the fuel cells — which environmental groups allege is shorter than Bloom Energy claims — to the availability of scandium, the rare earth material Bloom Energy depends on China to obtain.

In the new design, Bloom Energy says it will now only use 1,600 megawatts of what will amount to 2,462 allocated megawatts, leading to skepticism about why the company would build capacity for 862 extra megawatts on-site.

“This is a problem of their own making,” Cox said Wednesday of the groups’ request for a delay. “This is really a problem that [Yucca Growth Infrastructure] and NMED have created together, and they want to just briefly pause things so they can figure everything out and then pick it back up. … They need to just take this back to the drawing board.”

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.

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