Montana counties take different approaches to data center regulation
Micah Drew
(Daily Montanan) The Yellowstone County Commission this week directed the county attorney to seek a legal judgement on whether a citizen initiative seeking voter-approval of future data center construction is legal.
At the commission’s July 7 meeting, Deputy County Attorney Steve Williams said the county attorney’s office, which approved the petition for signature gathering, has concerns about whether it conflicts with the state constitution.
Williams cited a recent Montana Supreme Court case, Treasure County v. Edlund, which ruled a citizen’s initiative looking to regulate wind farms exceeded the authority granted to counties for zoning and was unconstitutional.
“That case seems almost directly on point and would, in our view, likely bar the proposed data center ordinance,” Williams said.
The Yellowstone County commissioners voted unanimously for the county attorney to file an action in district court to get a legal determination on the proposed ordinance.
Across Montana, concerns about data centers are spurring questions about what kind of oversight citizens and local governments have over large scale projects. Like Yellowstone County, Butte-Silver Bow residents want looking to put a citizen’s initiative onto the ballot, while the Missoula County Commission took its own action this week to halt data center construction while it determines how to regulate the industry.
Broadview resident Kassi Solberg is spearheading the Yellowstone County initiative, which would require companies proposing to build or expand data centers receive approval from two-thirds of registered voters.
In a press statement, Solberg said the commission’s action is “Big Government at its most obvious.”
“We are simply asking our neighbors to sign a petition so that voters — not bureaucrats — get to decide how massive data center development happens in our communities,” she said. “Instead of trusting the people they serve, county officials are spending public resources to hire lawyers and go to court to make sure that vote never happens.”
Solberg’s action was spurred by Quantica Infrastructure’s plans to build a data center campus on roughly 5,000 acres of land near Broadview.
In other parts of the state, elected officials are taking a more direct role in regulating data center construction.
The Missoula County Commissioners this week approved interim zoning that created a one-year moratorium on data center construction or expansion, while county planners update regulations.
“Zoning is how we decide what we’re going to do where, and what we’re seeing today is not a rescinding of our prior zoning because it wasn’t good,” Commissioner Josh Slotnick said. “I feel like it was pretty darn good, circa 2021.”
The interim zoning was prompted by a proposed data center at the Bonner Mill Industrial Park, which fell through earlier this week.
In March, Idaho-based data center company Krambu submitted an application to transform part of the old mill site into an AI data center with a proposed electrical use of up to 29 megawatts, but property owner Mike Heisey withdrew his signature from the data center’s application.
In a statement, Heisey said he withdrew his signature “after hearing from the public and understanding what the concerns are.”
At its meeting on July 9, the Missoula County Commission held a hearing on the interim zoning that would pause future data center construction within county boundaries while county planners update regulations to mitigate impacts to health, safety and the environment.
To create interim zoning regulations, the county has to identify an emergency that compels the zoning and adopt regulations that directly address the emergency.
The resolution states that the emergency is related to “potential impacts of data centers including noise and vibration, heat and thermal impacts, air quality, water quantity and quality and energy use.”
“These are really a relatively new use that communities across the nation are struggling with, and … our current regulations do not adequately address the potential impacts that we’re seeing with these uses,” said county planning director Karen Hughes.
The crux of the emergency, Hughes said, is energy and water consumption.
Providing backup generation for a 37 megawatt data center, for example, would be the equivalent of all Missoula households, she said, and depending on how that power is generated it could create noise, fuel and air quality concerns, as well as require additional transmission infrastructure.
Water consumption is highly dependent on the cooling technology employed by a data center, and municipalities have to determine how to regulate wastewater from the projects. A data center in Wyoming recently contaminated the wastewater in Cheyenne with a rare bacteria, leading to tightened restrictions governing wastewater discharge from large-scale projects.
“Our current regulations don’t address any of these additional issues, and we need to study them, figure out what the key issues are for our community, and then develop a set of regulations or a regulatory package that addresses those issues,” Hughes said.
During the commission meeting, dozens of community members showed support for the moratorium, expressed concern about the environmental impacts and applauded studying the issue more closely.
“We all recognize that data centers bring with them a host of issues. We’ve been talking about them, including the impacts on our energy systems, climate, water, resources, health, and safety,” said Climate Smart Missoula program director Shanti Devins. “As we’re learning here, and across Montana and the United States, those issues are significant, and they pose both immediate and long-term threats. It’s crucial to take the necessary time at this juncture to pause so that we can get it right.”
Slotnick said that the data center no longer moving forward shows the necessity of public input and the power of zoning, even as technology and industry evolve faster than regulations.
Before the vote, Slotnick added that the community would likely have to continue their organizing action, including in Helena.
The Legislature will be in session in a few months and it has “a proud tradition of undoing what Missoula County has done,” Slotnick said.