After months of horse-trading and debate by county officials over a proposed data center moratorium, Justice of the Peace Diane Curry threw yet another wrench into the process at Tuesday night’s Pulaski County Quorum Court agenda meeting.

Curry introduced an alternative moratorium proposal, numbered 26-I-52, with a nearly identical name but a very different intent: The ordinance would not apply to AVAIO Digital, the planned $6 billion data center project in Wrightsville that critics of Curry’s proposal say the original moratorium under consideration was intended to address.

“What we have here are two moratoriums. One is simply to defeat the other moratorium, to defeat the purpose of why we have the first moratorium, which is to stop AVAIO from going through without any regulation,” said Justice of the Peace Donna Massey, who voted no on Curry’s proposal.

Curry said she drafted her proposed ordinance to safeguard the county from litigation, and to ensure the Quorum Court does not step on the toes of other agencies and jurisdictions deemed to have the authority to regulate data centers. “The moratorium is intended solely to preserve the status quo while regulations are evaluated,” Curry said. Curry said she believes the Quorum Court has very limited authority to regulate data centers, given Act 851, a state law that puts limits on what local entities can do to control such operations, and recommended tabling her own proposal at one point. 

Justice of the Peace Julie Blackwood, the original sponsor of the more sweeping moratorium, numbered 26-I-45А, left mid-meeting due to illness after fiercely defending her proposal. “A project of this scale has the potential to affect power availability, water resources, emergency response, transportation infrastructure, neighboring property owners, and public service for decades to come,” said Blackwood. 

The original moratorium, which did not include an exception for AVAIO, was drafted by the Democratic nominee for Pulaski County judge, Wendell Griffen, an outspoken critic of the AVAIO Digital project. The previous moratorium was reintroduced Tuesday by JP Tina Ward, with Blackwood and JP Rebekah Davis as co-sponsors. Davis was absent, and once Blackwood left the meeting, the stronger proposal did not have the votes to move forward.

Despite Curry’s own reservations, her proposal moved through to the full Quorum Court meeting to be held at the end of the month.

Supporters of the original data center moratorium, drafted by Democratic nominee for Pulaski County Judge, Judge Wendell Griffen and introduced by Justice of the Peace Julie Blackwood, held up green cards in support of their ordinance. Credit: Brian Chilson

While no mention was made of the so-called subject matter expert that JPs promised to consult with ahead of this month’s meeting, deputy county attorney Dominique Lane was called on to answer numerous questions about the legal implications of the competing ordinances. 

Lane was clear that both ordinances pose legal risks to the county. “It is my opinion,” Lane said, “that neither of the ordinances protect the county from future litigation. Litigation is a risk in every action. I cannot confirm or deny that we won’t be sued for either one.” She later added that the legal risks would be lower under Curry’s proposal, but “not nil.” She also promised to defend the county in any potential lawsuit regardless of the risks. 

In terms of which parties may have grounds to sue, Lane mentioned AVAIO Digital, which could, for example, pursue remedies in court for any delays to its projects in the event of a year-long moratorium, Lane said. “If I’m an attorney for AVAIO, and my project is halted, I am most certainly looking at my legal avenues for redress,” she said. 

Lane said she is also concerned that both moratoriums “encroach upon the authority and jurisdiction given to other agencies,” including the Public Service Commission, which regulates utilities, and the Oil & Gas Commission, which Lane said was given the right under Act 851 to regulate cryptomining facilities, which the moratoriums appear to cover. 

Some JPs said protecting their constituents outweighed concerns that the moratorium could trigger a lawsuit. “I don’t want us to incur any legal ramifications,” said Massey. “However, this is rather serious, and it could have very serious implications in regards to our environment, as well as costs that are passed on to our constituents. So, when you think of things like that, sometimes you just have to fight,” she said, to a round of applause.

JP Tina Ward, whose district includes the proposed Google and AVAIO data center sites, likened the data center fight to the Civil Rights movement. “When Rosa Parks took action, she wasn’t worried about the law,” said Ward. “There’s just some things that you may have to do, and just take that risk.”

JP Natalie Capps, meanwhile, expressed concern that a lawsuit could potentially undo the efforts of a moratorium, as regulations might be put on pause as litigation moved through the courts. “What are the potential options, and what happens to the actionability of the moratorium if it is in some lawsuit?” Capps asked. Lane said the moratorium could, in fact, be paused in some legal scenarios. 

As the Quorum Court drags out its decision, AVAIO Digital is getting closer to having all final permits in place to move forward with construction on phase one of its project, a 150 megawatt facility spanning three buildings. Planning and Development Director Jim Cranor, who also spoke before the court, noted that AVAIO Digital still lacked one final permit from the Army Corps of Engineers to proceed with Phase One of its project but may seek a fairly simple workaround.

“​​As of today, AVAIO has still not received its Corps of Engineers approval for three wetland crossings,” said Cranor, adding that the company may elect to go around them or over them to avoid a required permit. “If that’s the case, and they provide a document stating that, and that the Corps acknowledges, then they’re done,” said Cranor.

If a moratorium were passed at a later point, Lane said, thatwould mean that half of AVAIO’s full-scale project, which is described as potentially an additional three more buildings, could be subject to different regulations. 

After a lengthy discussion, the JPs moved to vote before public comment, which angered many in the audience. 

Ward also noted that Blackwood had left the meeting due to sickness, and their proposal would not have enough votes. 

Justice of the Peace Julie Blackwood, who left mid-meeting due to illness, defended her ordinance as necessary to protecting her constituents “for decades to come.” Credit: Brian Chilson

Justice of the Peace Dianne Curry introduced a competing moratorium exempting AVAIO Digital, the project that sparked calls for the original moratorium. Credit: Brian Chilson

Nevertheless, both data center ordinances were voted on. The original moratorium, 26-1-45А, failed 6-3. Votes in favor included JPs Kathy Lewison, Steven Person, Donna Massey, Curtis Keith, Tina Ward, and Luke McCoy, while the no votes came from Natalie Capps, Dianne Curry, and Paul Elliott. Aaron Robinson voted present. JPs Rebekah Davis, Patricia Young-Baker, and Staci Medlock were absent. District 13 JP Phil Stowers resigned last month, and his replacement has not yet been appointed.

Curry’s proposed data center ordinance, voted on next, succeeded, in an 8-1 vote. JPs Natalie Capps, Steven Person, Donna Massey, Dianne Curry, Curtis Keith, Aaron Robinson, Luke McCoy and Paul Elliott voted yes to advance the ordinance. JP Kathy Lewison was the lone no vote, while Tina Ward voted present. 

Supporters of the stronger moratorium expect it to return. Whether it can reign in AVAIO may depend on whether the company’s final permits come in before they can gather support at the next Quorum Court agenda committee meeting in August.