Commissioners Table Data Center Moratorium

By Matt McDaniel and Will McDaniel

Tom Green County Commissioner’s Court did not approve a temporary ban on “green energy” projects and data centers during its meeting on Tuesday, instead choosing to table the motion to approve the item as presented by Precinct 4 Commissioner Shawn Nanny.

The proposed moratorium comes after weeks of public scrutiny around a possible data center in Precinct 4, where a large swath of land could be acquired by Beacon Data Centers, a developer out of Alberta, Canada.

Read more about the proposed data center here: “Rural Residents Want Data Center Answers.”

The moratorium sought to restrict any development of large-scale data storage facilities or centers, along with other projects labeled as “green energy developments,” such as battery energy storage facilities or other renewable power sources.

They have set a date for a public hearing from the potential buyers, Beacon Data Centers, and presumably the centers local developers, at next week’s commissioners court meeting.

Commissioners Grapple With Lack of Authority

After a lengthy proclamation read by Nanny, requesting specific temporary restrictions which called on the authority of the county to protect public health in matters of water quality, and land use responsibilities, he stated, “Within the city they have lots of standards, but it’s out in the county, it’s free for all. We have no zoning, we have no ordinances, and I do believe in private property rights. This is not infringing on that.

“But when whatever you’re doing on your private property impedes upon the safety of your neighbor or your surrounding neighbors, then I do have a problem with it. And you know, it’s up for debate, it’s gonna be brought up. ‘This is illegal, counties cannot impose a moratorium.’

“Well, that’s questionable.”

Tom Green County Judge Lane Carter cut to the quick with his summation of the situation:

“I want to start by saying that that man down there has been taking clocks to the jaw like a bar fight with his hands tied,” Judge Carter said of Comm. Nanny, “and it’s kind of disconcerting, especially when we know, as elected officials at the county level, exactly what he’s facing,…we’re going to the same fight with our hands tied behind our back.”

“We’re trying to help everybody out, but these are strange times.

“Like Shawn said, as elected officials we’re hearing people wanting the county to step in and do something, and up until this point we’ve heard nothing but property rights — private property rights.

“Less government, less restrictions, less regulations, to the point that we’ve governed ourselves, through the state statutes, out of being able to do a thing. That’s the whole story.”

While Commissioner Nanny described the law as “questionable” on this matter, Assistant County Attorney Sandy Rothband did not mince words:

“I can only reinforce the notion that right here, right now, this morning in this county, you all do not have the power to impose a moratorium. You don’t have the power to enforce it.”

“You could do it and you will be inviting litigation. I am not happy telling you that. I admire you for going forward with it.

“You all have hit it on the head, unless something’s coming from Austin, the legislature, giving us the power to do that which you have articulated this morning, we are at an impasse.”

Essentially, under Texas law, counties lack the authority to regulate past private property rights in un-zoned areas. Something referenced first by Judge Carter a moment before and then emphasized by Rothband.

“The moratoriums have been discussed within different counties,” Carter said. “Some of them have put the moratorium in place when they are statutorily not allowed to do so through the state. And that is because the state sets our guidelines on what we can do as a county. And a moratorium is not within our authority.

Rothband continued: “The only advice that I can give this court and reiterate to the citizens that are behind me, and I am pleased to see so many people want to engage in the making of policy, is that today we do not have the power to impose a moratorium. Should you try to enforce it, you will invite litigation.

“I’ve always told you that one of my concerns is keeping this county out of court. I would like to continue to do that. I know that other counties have done it. They are in litigation right now and it’s pending.

“I know that there are at least four other counties that have some special provisions that allow them to impose some restrictions. We do not.

“And I’m saddened by that because change is coming very quickly and it’s going to affect everything we do in this county.”

Possible Litigation Might Cost County

Commissioner Nanny posed a question after Rothband’s statement, “At what point, we have to ask ourselves this, at what point do we have to draw a line in the sand and say ‘Your damn lawsuit doesn’t scare us?'”

Rothband replied, “I don’t think there is a definitive answer to that, except to say — get ready for outside counsel. That’s the hard part. And I know it’s not what we wanted to hear. I know it’s not what the citizens wanted to hear.”

“The county attorney of Johnson County was at the seminar that you all know that I attended. They cannot afford outside counsel, so the county attorney is involved in this litigation. And that means there’s a standstill coming to the normal duties of the county commissioner’s court.

“That which you all have used for the moratorium, one specific section of the law, there are other sections that we have not addressed. But I can guarantee you the one that you have actually mentioned in your motion does not allow us to do that which you wanna do.

Public Comment And Outcome

Public comment varied in tone but was overwhelmingly oppositional to any data center construction. Numerous concerns, such as construction, disruption to local wildlife or habitat, along with agriculture and transportation concerns numbered among the chief subjects.

Also commenting was legal counsel for Beacon Data Centers, local attorney Jon Mark Hogg, who there to attend the public discussion. He stated “I’m here on behalf of Beacon Data Centers who are present in the room this morning. I’m getting the impression that there’s some sense that Beacon Data Centers has not been forthcoming enough or approaching officials to discuss this in advance of where we are today.

“The approach of confrontation and litigation is not the approach that Beacon Data Centers is interested in taking. Beacon Data Centers, its intent is to be a good partner for the county, a good partner and a good neighbor to the community of Tom Green County, wherever the data center ultimately gets built.”

Representatives for Beacon were in attendance.

Hogg also addressed the counties authorities, saying “Mr. Nanny, I especially hear and understand your concerns. I’ve represented counties all over the state of Texas for a long time.

I appreciate the role of county commissioners and county commissioners court and what they do and the difficult challenges that you have. I especially understand about a legislature imposing duties on a county that doesn’t give it the resources or the statutory authority to deal with. Dealt with that for years.”

He continued: “My son once asked me, ‘why does county government work that way?’ And I said, well, that’s because people that designed it didn’t really want it to do anything. And that’s essentially what the state, that’s what Austin does.

“They don’t want our county governments or our local city governments to be able to represent the people that they represent where they live. And that’s unfortunate.

“I agree with you wholeheartedly that that is something that definitely needs to be addressed in this and a lot of other areas when you’re talking about industries and economic development going into rural areas and counties.”

Commissioner Nanny replied, “I would advise doing that in open court so everybody can hear that.” After which Hogg advised that was not on the agenda.

This led to the motion, initially by Nanny to pass the moratorium, but upon recommendation from Judge Carter, the motion was tabled as presented and will be presented again once Beacon has a chance to discuss the project proposal at commissioner’s court next Tuesday.

Ultimately, many of the questions proposed will be given top billing in next year’s state legislature in Austin, where lawmakers are likely to focus on the regulatory apparatus, a measure already called for by the Commissioners in a resolution earlier this year.

Disclosure – Jon Mark Hogg is the founder and editor emeritus of the Concho Observer but did not contribute to or influence this report.