Berkeley County’s $4 Billion Data Center: Penzance Project Sparks Debate and Election Implications

46 min read West Virginia Data Centers Local Politics Environmental Issues
Berkeley County's $4 Billion Data Center: Penzance Project Sparks Debate and Election Implications

“This $4 billion investment proves West Virginia can compete at the highest level for the global tech economy” ~ Governor Patrick Morrisey

LEGAL DISCLAIMER: This analysis is for educational and research purposes only and does not constitute legal advice. The information provided represents a collection of publicly available data, legal research, and potential avenues for further investigation. For specific legal questions or to pursue any of the strategies discussed, readers must consult with qualified attorneys licensed to practice law in West Virginia and familiar with administrative law, constitutional law, and federal preemption issues. Each legal situation is unique and requires professional legal counsel.

Table of Contents

The Penzance Announcement: A Game-Changing Investment

On February 26, 2026, West Virginia Governor Patrick Morrisey announced that Penzance Management would invest $4 billion in a data center campus in Berkeley County, marking the state’s first “High Impact Intelligence Center” under newly enacted legislation.12 This massive development represents one of the largest private investments in West Virginia’s history and has quickly become a focal point of debate regarding economic development, environmental impact, and local governance.

Project Specifications and Scale

The Bedington Campus will span 548 acres in the Falling Waters District of Berkeley County, with plans for approximately 1.9 million square feet of development at full buildout. The facility will deliver 600 megawatts of critical IT capacity, making it a significant addition to West Virginia’s growing data center portfolio.3

Economic Impact Projections

  • Construction Jobs: Approximately 1,000 temporary positions during the build phase
  • Permanent Employment: 125 full-time positions with potential for growth as the campus expands
  • Investment Timeline: Phased development approach with initial operations expected to begin within 18 months

Revenue Distribution Framework

Under House Bill 2002’s microgrid legislation, revenue from the project will be allocated as follows:

  • 50% to Personal Income Tax Reduction Fund
  • 30% directly to Berkeley County
  • 10% distributed to all West Virginia counties on a per capita basis
  • 5% to Electric Grid Stabilization and Security Fund
  • 5% to Economic Enhancement Grant Program

Environmental Concerns and Water Usage

The project has generated significant environmental scrutiny, particularly regarding water consumption and infrastructure strain. Data centers can consume up to 5 million gallons of drinking water daily for cooling operations, according to environmental studies.4 A Food and Water Watch report indicates that nationwide data center water consumption tripled between 2014 and 2023, with projections suggesting 720 billion gallons of annual usage by 2028 for AI data servers alone.5

Berkeley County officials have identified opportunities to utilize reclaimed water for the facility. However, specific water usage details and environmental impact studies will likely remain non-public under current state regulations.

Grid Connection and Energy Demands

Unlike some proposed West Virginia data center developments, the Penzance facility will be “grid-connected,” meaning it will rely on existing electric utilities for power rather than developing independent energy generation. This approach has raised concerns about potential strain on local infrastructure and potential impacts on electricity costs for residents.

Community Response and Opposition

The announcement has faced significant pushback from local residents and environmental groups. In December 2025, more than 930 residents submitted public comments expressing concerns about:6

  • Environmental harm and irreversible community changes
  • Infrastructure impacts and strain on local resources
  • Lack of local control and transparency in the approval process
  • Noise pollution and quality of life degradation

The West Virginia Highlands Conservancy and other advocacy groups have organized opposition efforts, arguing that the state’s new data center development framework prioritizes economic incentives over community input and environmental protection.

Legislative Framework and Regulatory Changes

The project operates under West Virginia’s recently enacted Power Generation and Consumption Act and House Bill 2014, legislation designed to streamline data center development through:

  • Expedited permitting processes
  • Expanded microgrid usage permissions
  • Allowances for coal, natural gas, and other “reliable” energy resources
  • Reduced environmental study requirements

Transparency Concerns and Constitutional Questions

Environmental and engineering studies for the project may not be made public. Recent legislative sessions saw amendments requiring developers to share specific water usage impacts voted down, despite calls for greater public disclosure.

This secrecy raises serious constitutional questions about the potential use of non-disclosure agreements (NDAs) by public officials to shield information from West Virginia citizens.

Local Control Stripped by HB 2014

HB 2014 significantly stripped approval and oversight authority away from local governments like the Berkeley County Commission, leaving them with limited authority over developments that create massive local impacts. This legislation effectively reduced local officials to “cheerleaders” for projects they cannot meaningfully control or oversee, prioritizing corporate interests over community self-governance.

2026 Election Implications and Voter Action

The 2026 Berkeley County elections present critical opportunities for residents concerned about the data center’s impact. The primary election is scheduled for May 12, 2026, with early voting running from April 29 through May 9.7

Key Election Information

  • Candidate Filing: Closed January 31, 2026
  • Primary Date: May 12, 2026
  • Polling Hours: 6:30 AM to 7:00 PM
  • Early Voting: April 29 - May 9 (8 AM - 5 PM weekdays, 9 AM - 5 PM Saturdays)
  • Party Registration Deadline: April 21, 2026 (for Republican primary participation)

Voting Out Incumbents: Strategic Considerations

For residents seeking to challenge current leadership over the data center decision:

  1. Research Candidate Positions: Contact candidates directly about their stance on data center development, environmental protection, and community input processes
  2. Primary Elections Matter: Many Berkeley County races are effectively decided in primaries due to party dominance in various districts
  3. Local Engagement: Attend county commission meetings, public hearings, and candidate forums to voice concerns
  4. Coalition Building: Connect with like-minded residents through local advocacy groups and social media networks
  5. Voter Registration: Ensure registration is current and consider party affiliation requirements for primary participation

Electoral Probability Assessment: 2026 Republican Primary Analysis

Based on detailed candidate research and electoral dynamics, here are the specific win probabilities for challengers seeking to remove HB 2014 supporters in Berkeley County’s May 12, 2026 Republican Primary:

Highest Impact Opportunities:

WV State Senate District 15 (East Martinsburg/Berkeley County)

  • Incumbent: Darren Thorne (R) - Appointed December 2024, voted YES on HB 2014 as House Delegate
  • Challengers: Ken Reed (former Delegate, Hedgesville), Robert Wolford (Points)
  • Thorne was never elected, only appointed by Governor Justice. Two challengers may split the anti-incumbent vote, though Reed has legislative experience. Potentially competitive primary.

Berkeley County Commission, Norborne District

  • Incumbent: Eddie Gochenour (R) - Commission President
  • Challenger: Ken Mattson (R, Inwood)
  • Gochenour has strong name recognition and party backing as an established incumbent.

Moderate Removal Opportunities:

WV State Senate District 16 (West Martinsburg/Inwood)

  • Incumbent: Jason Barrett (R) - Voted YES on HB 2014 in Senate (32-1 passage)
  • Challenger: Chantele Mack (Martinsburg)
  • Barrett won 2022 general with approximately 60.5%, has established donor base and party support. Mack is a new challenger.

Long-Shot Federal Challenges:

U.S. Senate (Statewide)

  • Incumbent: Shelley Moore Capito (R) - 3-term Senator, supported federal data center preemption
  • Berkeley County Challengers: Bryan McKinney (Inwood), Janet McNulty (Martinsburg), Tom Willis (Martinsburg/State Senator)
  • Capito has massive name recognition and fundraising advantage. Incumbent Senate primary losses are extremely rare in West Virginia.

Uncontested HB 2014 Supporters (Focus on November General Election):

No Republican Primary Challengers Filed:

  • Michael Hite (House District 92) - Voted YES on HB 2014
  • Mike Hornby (House District 93) - Voted YES on HB 2014
  • Chuck Horst (House District 95) - Voted YES on HB 2014
  • Jim Whitacre (County Commission, Shenandoah District) - Failed to challenge HB 2014

Open Seat Opportunities (No HB 2014 Vote History):

House Districts 90, 91, 96 - Multiple candidates in open seats. Key strategy: Question all candidates about their position on HB 2014 and data center authority.

Strategic Voting Factors Affecting Probabilities:

  • HB 2014 Impact: Eliminated county zoning authority, stripped $7.5 million annually from Berkeley County schools
  • Turnout Dynamics: Primary incumbents at county level rarely lose without strong organizing efforts
  • Split Fields: Multiple challengers can help incumbents by dividing opposition votes
  • Appointment Vulnerability: Never-elected appointees (like Thorne) are most vulnerable to primary challenges

Game-Changing Strategy: Democratic Crossover Voting

The Most Effective Path to Remove HB 2014 Supporters:

Since most Berkeley County races are decided in Republican primaries rather than general elections, Democrats registering as Republicans by April 21, 2026 could dramatically shift these probability calculations:

Current Reality: Low Democratic turnout in general elections means HB 2014 supporters win by default in Republican-dominated districts.

Crossover Strategy Impact:

  • Darren Thorne (Senate-15): Could face stronger challenge with organized Democratic crossover support for Ken Reed
  • Eddie Gochenour (County Commission): Could face increased pressure with crossover voting
  • Jason Barrett (Senate-16): Could face stronger challenge with strategic Democratic registration

Legal Framework: West Virginia election law allows voters to choose their party affiliation up until April 21, 2026. This is completely legal and represents smart strategic voting.

Organizational Requirement: Success depends on coordinated voter registration drives in Democratic-leaning areas of Berkeley County, focusing on voters who understand that defeating HB 2014 supporters requires voting in Republican primaries.

Historical Precedent: Crossover voting has successfully removed entrenched incumbents in other states when organized opposition recognizes where real electoral power lies.

Targeting HB 2014 Supporters: State Legislative Strategy

The data center boom in West Virginia was enabled by House Bill 2014 (the Power Generation and Consumption Act), which passed with overwhelming support in 2025. Understanding which legislators supported this legislation provides a roadmap for voters seeking to challenge the policy direction that enabled projects like Penzance.

HB 2014 Voting Record Analysis

Official Voting Records: The complete voting record for HB 2014 is available through the West Virginia Legislature’s official tracking system:

The Numbers: HB 2014 passed with overwhelming legislative support:8

  • Initial House Vote (Roll No. 308): 88-12 (Y: 88 N: 12 NV: 0 Abs: 0) [PASS]
  • Final House Vote (Roll No. 575): 82-16 (Y: 82 N: 16 NV: 0 Abs: 2) [PASS]
  • Senate Vote (Roll No. 516): 32-1 (Y: 32 N: 1 NV: 0 Abs: 1) [PASS]
  • Final Senate Vote (Roll No. 591): 32-1 (Y: 32 N: 1 NV: 0 Abs: 1) [PASS]
  • Signed into law: April 30, 2025 by Governor Morrisey9

Key Supporters Include:

  • Speaker Roger Hanshaw (lead sponsor)
  • Delegate Clay Riley (R-Harrison) - described as “a longtime proponent for data centers”
  • Delegates: Fehrenbacher, Anderson, Zatezalo, Akers, Hornbuckle (co-sponsors)
  • 88 House members who voted yes on the original version
  • 32 Senate members who consistently supported the legislation

Opposition Voices:

  • House: Republican Delegates Marty Gearheart (R-Mercer), Bill Flanigan (R-Ohio County), and Jordan Bridges (R-Logan) joined nine Democrats in opposing the legislation
  • Senate: Senator Rupie Phillips (R-Logan) was the lone nay vote, citing concerns about electric rate increases and local control
  • Common concerns: Potential utility rate increases passed to customers and measures removing local control from counties and municipalities

2026 Strategic Removal Framework

Target Districts for Maximum Impact:

  1. Primary Sponsor Districts: Focus on removing HB 2014’s primary sponsors and most vocal supporters
    • Clay Riley (R-Harrison) - key data center proponent
    • Speaker Hanshaw’s district
    • Co-sponsor districts: Fehrenbacher, Anderson, Zatezalo
  2. Swing Districts: Target Republicans in districts with environmental concerns or split constituencies
    • Districts with significant rural/environmental voter bases
    • Areas directly affected by proposed data center developments
  3. Leadership Positions: Focus on removing legislative leadership who shepherded the bill
    • Committee chairs who advanced the legislation
    • Party leadership who whipped votes

Voter Strategy Implementation

Research Phase:

  • Identify your specific House district using the WV Secretary of State candidate search tool
  • Cross-reference your district’s delegate with the HB 2014 voting record
  • Research whether your delegate sponsored, co-sponsored, or voted for the legislation

Opposition Research:

  • Document your delegate’s statements supporting data center development
  • Track any campaign contributions from energy or data center interests
  • Compile voting records on environmental and utility rate issues

Primary Strategy (Most Effective):

  • Filing Deadline: Candidates must file by January 31, 2026 (already passed for 2026)
  • Primary Date: May 12, 2026
  • Early Voting: April 29 - May 9, 2026
  • Focus on Republican primaries where most HB 2014 supporters are vulnerable

Candidate Recruitment:

  • Identify potential challengers with environmental credentials
  • Support candidates who explicitly oppose data center subsidies
  • Recruit candidates from affected communities (water users, ratepayers, farmers)

Coalition Building:

  • Partner with environmental groups opposing data centers
  • Connect with ratepayer advocacy organizations
  • Coordinate with rural landowner associations
  • Build bridges with fiscal conservatives opposing corporate subsidies

Messaging Framework:

  • Corporate Welfare: Frame HB 2014 as subsidizing wealthy corporations at taxpayer expense
  • Rate Increases: Emphasize potential electricity cost increases for working families
  • Local Control: Highlight loss of community input on major developments
  • Water Security: Connect to concerns about industrial water consumption

District-Specific Targeting

High-Priority Removal Targets (based on HB 2014 support and electoral vulnerability):

  1. Clay Riley (R-Harrison) - Primary data center advocate, potentially vulnerable to environmental messaging
  2. Rural Republicans who voted yes but represent agricultural districts concerned about water usage
  3. Suburban Republicans in districts with educated voters concerned about transparency
  4. Delegates from counties with proposed or existing data center developments

2026 Election Mechanics

Strategic Voter Registration - Democratic Crossover Strategy:

  • CRITICAL DEADLINE: April 21, 2026 - Democrats can register as Republican to vote in primaries
  • Why This Matters: Most Berkeley County races are decided in Republican primaries, not general elections
  • Strategic Impact: Concentrated Democratic registration as Republican could provide the margin needed to defeat HB 2014 supporters
  • Legal and Ethical: Completely legal under WV election law - voters can choose party affiliation

Absentee Voting: Available for voters who will be absent on election day Campaign Finance: Monitor HB 2014 supporters’ fundraising from data center and energy interests Endorsements: Seek endorsements from environmental groups, ratepayer advocates, and fiscal conservative organizations

Long-Term Legislative Strategy

Beyond 2026: Even partial success in removing HB 2014 supporters could:

  • Signal voter opposition to corporate data center subsidies
  • Encourage more environmental scrutiny of future projects
  • Build momentum for repealing or amending problematic provisions
  • Strengthen local control advocates in the legislature

The 2026 elections represent the first opportunity for voters to hold legislators accountable for enabling the data center boom through HB 2014. Success requires coordinated effort, strategic candidate recruitment, and sustained voter education about the connections between legislative votes and community impacts.

Essential Questions for Every Candidate

Based on the Berkeley County Voter Guide analysis, here are the key questions every voter should ask candidates at forums, debates, and campaign events:

For All Candidates:

  1. “Do you support HB 2014 as signed into law? Why or why not?”
  2. “Will you sponsor or support legislation to restore county zoning authority over data centers?”
  3. “Do you support returning the diverted property tax revenue to Berkeley County and its schools?”
  4. “Will you commit to transparency — publishing any legal opinions on HB 2014 affecting our county?”

For Federal Candidates:

  • “Will you oppose federal legislation that strips county zoning and tax authority?”
  • “Do you support restoring county authority stripped by HB 2014?”

For Open Seat Candidates:

  • “How will you vote on laws like HB 2014?”
  • “Will you vote to restore county zoning authority and return diverted tax revenue?”

For County Commission Candidates:

  • “Will you retain independent counsel to review HB 2014?”
  • “Will you publicly oppose legislation that strips $7.5 million from Berkeley County?”

Key Election Dates for Berkeley County Voters

  • Voter Registration Deadline: April 21, 2026
  • Early Voting Period: April 29 - May 9, 2026
  • Republican Primary Election: May 12, 2026
  • General Election: November 3, 2026

Find Your Districts: Use mapwv.gov/vote to identify your specific legislative districts and candidates.

Constitutional Crisis: NDAs and Government Secrecy

The Penzance data center controversy highlights a growing constitutional crisis in West Virginia regarding the use of non-disclosure agreements and other secrecy mechanisms by public officials to withhold information from citizens.

West Virginia’s Constitutional Foundation for Transparency

West Virginia’s Freedom of Information Act establishes that government transparency is rooted in “the fundamental philosophy of the American Constitutional form of representative government which holds to the principle that government is the servant of the people, and not the master of them.”10 The law explicitly states:

“The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments of government they have created.”

Constitutional Problems with NDAs by Public Officials

Violation of Democratic Principles

When public officials sign NDAs related to government business, they potentially violate the fundamental constitutional principle that “all persons are, unless otherwise expressly provided by law, entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees.”

Circumventing Public Records Law

West Virginia’s FOIA requires that “any writing containing information relating to the conduct of the public’s business, prepared, owned and retained by a public body” must be accessible to the public. NDAs that prevent disclosure of government deliberations or agreements effectively circumvent these requirements.

Undermining Democratic Accountability

The state’s constitutional framework recognizes that transparency is essential for democratic accountability. As codified in W.Va. Code §29B-1-1, FOIA must be “interpreted liberally, in favor of access,” while any exemption allowing records to be withheld “must be interpreted narrowly.”

The Penzance Secrecy Problem

The Penzance data center development exemplifies these constitutional concerns:

  • Environmental studies may not be made public despite affecting public resources
  • Financial arrangements between government and private developers lack transparency
  • Public impact assessments are shielded from citizen review
  • Government negotiations occur behind closed doors without public oversight

Recent Threats to Transparency

The constitutional problems extend beyond the Penzance project. Recent developments in West Virginia include:

Legislative Exemption Proposals

House Speaker Roger Hanshaw has proposed legislation to exempt the Legislature from West Virginia’s Freedom of Information Act, potentially allowing lawmakers to hide communications with lobbyists, draft legislation, and other public business from citizen scrutiny.

Ethics Commission Concerns

The West Virginia Ethics Act requires that public servants “use their positions for the public’s benefit and not for private gain,” yet NDAs protecting corporate interests may violate this fundamental obligation.

Administrative Law Challenges Under West Virginia Procedure Act

The West Virginia Administrative Procedure Act (Chapter 29A) provides multiple pathways for citizens to challenge the data center development through formal administrative proceedings:

Contested Case Procedures: Citizens adversely affected by agency decisions have the right to request contested case hearings. Under W.Va. Code §29A-5-4, any party adversely affected by a final order or decision in a contested case is entitled to judicial review. This applies to permits, environmental approvals, and regulatory decisions related to the data center.

Notice and Hearing Rights: All parties must receive at least ten days’ written notice before any contested case hearing. The notice must contain the date, time, place of hearing and statement of matters asserted. Citizens can cross-examine witnesses and submit rebuttal evidence.

Standards for Judicial Review: Courts must reverse agency decisions if they find the administrative findings are:

  • In violation of constitutional or statutory provisions
  • In excess of the statutory authority or jurisdiction of the agency
  • Clearly wrong in view of reliable, probative, and substantial evidence
  • Arbitrary or capricious or characterized by abuse of discretion

2025 Appeal Process Changes: CRITICAL UPDATE: For any final agency orders issued after June 30, 2022, judicial review proceedings must be filed with the West Virginia Intermediate Court of Appeals rather than circuit courts. This streamlines the appellate process and may provide more specialized review of administrative decisions.

Timing Requirements: Judicial review proceedings must be instituted within thirty days of receipt of notice of the final agency order or decision. The agency must transmit the complete administrative record to the court within fifteen days.

Environmental Review Challenges

Citizens can challenge environmental permits and assessments through administrative law procedures:

Environmental Impact Assessment Requirements: Data center developments may trigger environmental review under state environmental laws. Citizens can challenge inadequate environmental studies or demand proper impact assessments.

Water Use Permits: Given the data center’s massive water consumption needs, citizens can challenge water withdrawal permits through contested case proceedings if environmental impacts are inadequately assessed.

Air Quality and Noise Permits: Any air quality or noise permits required for the data center operations can be challenged through administrative procedures if proper environmental review was not conducted.

Public Participation in Rulemaking

If agencies attempt to create new rules to accommodate data center development, the Administrative Procedure Act requires extensive public participation:

Public Notice Requirements: Agencies must provide adequate public notice of proposed rules, including publication in the State Register and direct notice to affected parties.

Public Hearing Rights: Citizens have the right to request public hearings on proposed rules and to submit written comments during the comment period.

Challenge Authority: Citizens can challenge the adoption of rules that exceed agency authority or violate constitutional principles through judicial review procedures.

Constitutional Challenges

Citizens have constitutional standing to challenge government secrecy. Federal courts have recognized that content-based restrictions on government transparency must be “narrowly tailored to withstand First Amendment scrutiny,” as demonstrated in recent rulings striking down overly broad secrecy laws.

FOIA Enforcement

West Virginia law provides mechanisms for citizens to compel disclosure of government records. Courts must interpret FOIA liberally in favor of public access, making NDAs by public officials legally vulnerable.

Due Process and Property Rights Challenges

The West Virginia Constitution protects property rights and due process. Citizens can challenge data center approvals that:

  • Violate procedural due process by inadequate notice or hearing opportunities
  • Constitute taking of property rights without just compensation
  • Violate substantive due process through arbitrary or unreasonable government action

Electoral Accountability

The most immediate remedy lies in electoral accountability. Voters can demand that candidates pledge to:

  • Refuse to sign NDAs related to government business
  • Publish all agreements between government and private developers
  • Support FOIA strengthening rather than exemptions
  • Commit to open meeting laws for all public deliberations

Constitutional Questions for Candidates

Berkeley County voters should ask all candidates:

  1. “Will you refuse to sign any NDAs related to government business?”
  2. “Do you believe the public has a constitutional right to know about all agreements between government and private companies?”
  3. “Will you commit to releasing all communications with data center developers?”
  4. “Do you support strengthening or weakening West Virginia’s Freedom of Information Act?”

The Broader Constitutional Stakes

The Penzance controversy represents more than a single development project—it’s a test case for whether West Virginia’s constitutional commitment to government transparency will survive the pressure of corporate development interests.

As the state’s own law declares, “the people insist on remaining informed so that they may retain control over the instruments of government they have created.” NDAs by public officials represent a direct assault on this constitutional principle and the democratic accountability it protects.

West Virginia Code Section 29B-1-1 explicitly prohibits public officials from hiding information from voters. The law establishes that the Freedom of Information Act exists because:

“The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.”

This legal standard makes clear that public officials cannot use NDAs, confidentiality agreements, or other secrecy mechanisms to withhold government information from citizens. The Penzance project’s secretive environmental studies, hidden financial arrangements, and non-public negotiations directly violate both the letter and spirit of this transparency mandate.

The law requires that FOIA be “construed liberally in favor of allowing inspection of public records,” making any attempt to hide government business through corporate NDAs legally questionable and constitutionally problematic.

Citizens Taking Action: Petition to Amend HB 2014

In response to the constitutional violations and local control issues created by HB 2014, concerned West Virginia citizens have launched a Change.org petition calling for legislative action:

Amend HB2014 to Restore Our Right to Self-Determination and Governance

This grassroots petition represents citizen efforts to restore local control and constitutional transparency that HB 2014 stripped away. Supporting this petition demonstrates public opposition to legislation that prioritizes corporate interests over community self-governance and democratic accountability.

Penzance Management Background

Penzance Management, founded in 1996 and based in Washington, D.C., operates as a real estate owner, operator, developer, and fund manager specializing in data center development. The company has previous experience with hyperscaler clients, including a Fairfax County, Virginia facility pre-leased to Amazon Web Services.

Managing Partner Victor Tolkan emphasized the company’s approach: “We build to suit for hyperscalers. That’s what we do. So we find land, we entitle land, we work with the municipalities to get what we need.” However, Tolkan declined to provide details about securing facility capacity buyers, citing confidentiality requirements.

Regional and National Context

The Berkeley County project reflects broader trends in data center development across Appalachian states, where low energy costs, favorable regulations, and available land attract technology infrastructure investments. However, it also highlights growing tensions between economic development priorities and environmental stewardship concerns.

Similar debates have emerged across rural communities nationwide as data centers seek locations outside traditional technology hubs, often straining local resources while promising economic benefits that may not materialize as expected.

Potential Benefits: A Hope for Responsible Development

While this analysis has focused heavily on concerns and accountability, it’s important to acknowledge that if the Penzance data center project proceeds with proper oversight and safeguards, it could generate significant benefits for West Virginia.

Revenue Generation and Economic Impact

If successfully implemented, the project’s $4 billion investment could deliver substantial economic returns:

  • State Revenue: Under HB 2002’s framework, 50% of revenue goes to Personal Income Tax Reduction Fund, potentially reducing tax burden on working families
  • County Benefits: 30% directly to Berkeley County could fund essential services and infrastructure improvements
  • Statewide Distribution: 10% distributed to all counties on per capita basis provides rural funding opportunities
  • Job Creation: 1,000 construction jobs and 125 permanent positions represent meaningful employment in the region

Infrastructure Investment Opportunities

The project’s revenue streams could address critical infrastructure needs across West Virginia, particularly in communities facing water crises:

Gary City Water Infrastructure

Gary City in McDowell County exemplifies the water infrastructure crisis facing many West Virginia communities. Residents have endured years of contaminated water, with issues including:

  • Water contamination from iron and manganese
  • Significant water loss due to aging infrastructure and leaks
  • Deteriorated water infrastructure beyond repair
  • Contamination issues requiring residents to rely on bottled water

Potential Solution: Data center revenue could help fund statewide water infrastructure needs, with specific allocation for communities like Gary City to finally receive clean, safe drinking water.

Environmental Safeguards and Innovation

If properly managed, the project could demonstrate best practices:

  • Reclaimed Water Usage: Berkeley County officials identified opportunities to use reclaimed water, reducing strain on fresh water resources while lowering costs
  • Grid Efficiency: Unlike some data centers, Penzance will connect to existing electrical infrastructure rather than developing independent generation
  • Environmental Monitoring: Proper oversight could establish new standards for sustainable data center development

Regional Development Model

Success could position West Virginia as a leader in responsible technology infrastructure development, potentially attracting additional investment while maintaining environmental standards and community input.

The Balance of Hope and Accountability

The potential benefits are real and significant. West Virginia communities like Gary City desperately need infrastructure investment, and data center revenue could provide crucial funding. The key question is whether these benefits will be realized through transparent, accountable development that serves public interests.

For this potential to be realized, the following conditions are essential:

  • Full environmental impact disclosure and mitigation
  • Genuine community input and local control restoration
  • Transparent revenue allocation and spending oversight
  • Enforceable environmental and safety standards
  • Regular public reporting on project impacts and benefits

Looking Forward

The Penzance data center represents a critical test case for West Virginia’s approach to balancing economic development with environmental protection and community input. As the project moves through development phases, several key questions remain:

  • Will promised economic benefits materialize as projected?
  • Can environmental impacts be adequately mitigated through reclaimed water use and proper oversight?
  • How will project revenue be allocated to address critical infrastructure needs like Gary City’s water crisis?
  • Will transparency and accountability mechanisms ensure public benefit over private profit?
  • What precedent will this set for future data center developments?

The answers to these questions will likely influence not only Berkeley County’s future but also broader policy discussions about sustainable development in rural America. For local residents, the 2026 elections offer the most immediate opportunity to influence whether this development serves community needs or primarily corporate interests.

As Governor Morrisey proclaimed this “a historic win that proves West Virginia can compete at the highest level for the global tech economy,” the ultimate measure of success will depend on whether this competition delivers tangible benefits like clean water for Gary City residents and sustainable economic growth that strengthens rather than compromises community welfare and environmental sustainability.

IMPORTANT: The following information is for research and educational purposes only. This is not legal advice. Consult with qualified attorneys before pursuing any legal action.

Based on the West Virginia Administrative Procedure Act analysis, residents have multiple immediate tactical legal options to contest the data center site:

1. Administrative Permit Challenges

File Contested Case Requests: If any state agency has issued or will issue permits for the Penzance data center (environmental, water use, air quality, construction, etc.), residents can request contested case hearings under W.Va. Code §29A-5-4.

Key Permits to Target:

  • Water withdrawal permits from the Department of Environmental Protection
  • Air quality permits for backup generators and cooling systems
  • Waste discharge permits for industrial operations
  • Construction permits from relevant state agencies
  • Environmental compliance certifications under HB 2014

Standing Requirements: Any resident “adversely affected” by these permits has legal standing to challenge them. This includes impacts on water resources, air quality, property values, or quality of life.

2. FOIA Enforcement Actions

Strategic FOIA Requests: File comprehensive Freedom of Information Act requests for:

  • All communications between state agencies and Penzance Management
  • Complete environmental studies and impact assessments
  • Water usage calculations and infrastructure impact studies
  • Economic analysis and methodology documents
  • Any NDAs or confidentiality agreements involving public officials

FOIA Enforcement Timeline: Agencies have 5 business days to respond. If requests are denied or delayed, residents can file enforcement actions in circuit court compelling disclosure.

Legal Fee Recovery: Under W.Va. Code §29B-1-7, successful FOIA plaintiffs can recover attorney fees and court costs, making legal action financially viable.

3. Constitutional Due Process Challenges

Challenge HB 2014 Implementation: File lawsuits challenging the constitutionality of HB 2014’s implementation, arguing:

  • Violation of local self-governance principles
  • Procedural due process violations through inadequate public notice
  • Substantive due process violations through arbitrary legislative classifications
  • Taking of local tax revenue without due process

Federal Civil Rights Claims: Under 42 U.S.C. § 1983, residents can sue state officials who violate constitutional rights under color of law, including transparency and due process violations.

4. Environmental Standing Challenges

Clean Water Act Citizen Suits: If the data center violates federal water pollution laws, residents can file citizen enforcement actions under 33 U.S.C. § 1365 after giving 60 days notice to violators and EPA.

State Environmental Violations: Challenge any violations of West Virginia environmental laws through administrative proceedings and state court enforcement actions.

5. Intergovernmental Coordination Challenges

County Authority Assertions: Encourage Berkeley County Commission to:

  • Assert remaining county authority over infrastructure and services
  • Challenge state preemption through intergovernmental immunity doctrines
  • File amicus briefs supporting resident legal challenges
  • Refuse to provide county services or infrastructure support beyond legal requirements

Class Action Potential: Multiple residents with similar impacts can file coordinated legal challenges or class action lawsuits, reducing individual legal costs and increasing pressure on defendants.

Legal Aid Resources: Contact West Virginia legal aid organizations, environmental law clinics, and public interest law firms for representation assistance.

Expert Witness Development: Document impacts through professional environmental, economic, and engineering assessments to support legal challenges.

Immediate Next Steps for Residents

  1. Document All Impacts: Create detailed records of how the data center affects your property, water access, air quality, or community resources
  2. Request Public Records: File immediate FOIA requests for all government communications about the project
  3. Monitor Permit Applications: Track all state permits and file contested case requests within required timeframes
  4. Coordinate Legal Strategy: Connect with other affected residents and legal advocacy organizations
  5. Preserve Legal Deadlines: Many administrative challenges have strict 30-day filing deadlines after agency decisions

The analysis identifies multiple clear paths for residents to contest the data center site: they have strongest legal recourse through administrative law challenges under the West Virginia Administrative Procedure Act, FOIA enforcement actions with attorney fee recovery, constitutional transparency and due process challenges, coordinated environmental permit contests, and strategic electoral accountability measures to restore local control.

The key insight from the regulatory analysis is that HB 2014, while stripping local zoning authority, cannot eliminate residents’ constitutional rights to administrative due process, environmental protection, and government transparency. These federal and state constitutional protections provide robust legal frameworks for challenging both the development itself and the secretive processes that enabled it.

RESEARCH DISCLAIMER: This analysis is educational research based on statutory language review. It does not constitute legal advice. Consult qualified legal counsel before pursuing any challenges.

Analysis of the actual statutory language in W.Va. Code §5B-2-21b reveals multiple constitutional and legal contradictions that provide strong grounds for legal challenges:11

1. Unconstitutional Emergency Rulemaking Authority

The Problem: Section (g) grants the Department of Commerce authority to “promulgate legislative rules, INCLUDING EMERGENCY RULES” for data center projects.

Constitutional Violation: Emergency rulemaking bypasses required public notice and comment periods, violating:

Legal Challenge Strategy: File constitutional challenges arguing that emergency rulemaking for non-emergency economic development violates procedural due process and exceeds constitutional executive authority.

2. Municipal Home Rule Program Contradiction

The Problem: Section (d) states data centers are exempt from municipal authority “notwithstanding…any municipality’s home rule powers…including any authority pursuant to the Municipal Home Rule Program under §8-1-5a.”

Legal Contradiction: W.Va. Code §8-1-5a grants municipalities specific home rule powers that cannot be arbitrarily revoked by the Legislature without meeting strict constitutional standards.

Challenge Strategy: Municipalities can file lawsuits arguing that:

  • The statute violates municipal home rule constitutional protections
  • Stripping home rule powers violates municipal corporation rights
  • Creates a class action opportunity where multiple municipalities jointly challenge the home rule violations

3. Rural Property Rights and Agricultural Exemptions

The Critical Finding: The statute exempts data centers from “horticultural” ordinances and restrictions.

Legal Problem: In rural and unincorporated areas, horticultural restrictions affect:

  • Food production rights on private property
  • Agricultural zoning protections
  • Rural economic activities and farming operations

Constitutional Challenge: Rural property owners can argue that prohibiting counties from enforcing horticultural protections violates:

  • Property rights under the 5th and 14th Amendments
  • Rural economic due process protections
  • Agricultural land use constitutional protections

4. OSHA Safety Standards Create Federal Preemption Issues

Noise Regulation Conflicts: The statute prohibits county “noise” ordinances, but federal OSHA standards (29 CFR 1910.95) establish mandatory workplace noise exposure limits.

Federal Law Supremacy: Counties can argue they retain authority to enforce OSHA-compliant noise regulations because:

  • Federal OSHA standards preempt conflicting state law
  • Worker safety regulations fall under federal commerce clause authority
  • Counties have police power duties to protect public health and safety

Lighting/Illumination Conflicts: OSHA Standard 1910.305 requires specific lighting and electrical safety standards that counties may need to enforce for worker protection.

Legal Strategy: Use federal preemption doctrine to argue that county health and safety enforcement authority cannot be eliminated by state law when it conflicts with federal worker protection requirements.

5. County Revenue and Public Safety Authority Violations

Building Permit Revenue Loss: Section (d)(2) eliminates county authority over “building permitting, inspection, or code enforcement,” directly impacting county finances.

Public Safety Endangerment: The statute prevents counties from:

  • Conducting safety inspections for emergency response planning
  • Enforcing fire codes for first responder safety
  • Maintaining building records needed for disaster response
  • Collecting permit revenues used to fund safety services

Constitutional Challenges:

  • Unfunded Mandates: Counties still must provide emergency services but cannot collect revenues or conduct inspections
  • Intergovernmental Immunity: Counties retain sovereignty over local police powers and public safety
  • Fiscal Autonomy: Taking county revenue sources may violate constitutional local government finance protections

6. Business License Contradiction and Equal Protection

The Problem: Section (d)(3) exempts data centers from “county or municipal license requirements.”

Equal Protection Violation: Creating different licensing requirements for different businesses violates:

  • Equal protection under law
  • Fair business competition principles
  • Revenue collection equality

Antitrust Law Conflicts: This exemption may violate W.Va. Code Chapter 47, Article 18 (Antitrust Act) by:

  • Allocating markets unfairly (§47-18-3(c))
  • Creating anti-competitive business advantages
  • Restraining trade by exempting certain businesses from licensing requirements

Multi-Jurisdictional Challenges: These contradictions create opportunities for:

  1. County Class Action: Multiple counties can jointly challenge revenue and authority losses
  2. Municipal Home Rule Coalition: Cities can coordinate challenges to home rule violations
  3. Rural Property Owners Association: Agricultural and rural property owners can challenge horticultural restrictions
  4. Business Association Challenges: Other businesses can challenge unequal licensing treatment under antitrust law
  5. Worker Safety Coalition: Labor unions and OSHA compliance organizations can challenge federal preemption conflicts

For Counties:

  • File emergency injunctions to preserve inspection and permitting authority for public safety
  • Assert intergovernmental immunity and police power sovereignty
  • Challenge unfunded mandate aspects of continued emergency service requirements

For Municipalities:

For Property Owners:

  • Challenge horticultural restriction exemptions as property rights violations
  • File agricultural land use protection challenges in rural areas
  • Assert constitutional protections for farming and food production activities

For Businesses:

  • File equal protection challenges based on licensing exemption disparities
  • Invoke antitrust law violations under Chapter 47 for unfair market allocation
  • Challenge restraint of trade created by unequal regulatory treatment

Documentation Strategy

Critical Evidence Collection:

  1. Emergency Response Documentation: Document how inspection/permit limitations endanger first responders
  2. Revenue Impact Analysis: Calculate exact county revenue losses from permit and licensing exemptions
  3. OSHA Compliance Documentation: Demonstrate conflicts between state exemptions and federal safety requirements
  4. Agricultural Impact Assessment: Document how horticultural exemptions affect rural property rights and food production

Legal Research Priority: The multiple contradictions in §5B-2-21b create a target-rich environment for constitutional challenges. Success requires coordinated legal strategy focusing on the most legally vulnerable contradictions: emergency rulemaking authority, home rule violations, and federal OSHA preemption conflicts.

DISCLAIMER: This section provides research information about federal standards. For specific OSHA compliance questions or legal challenges, consult with attorneys specializing in occupational safety law.

The West Virginia statute’s prohibition on county noise and lighting ordinances directly conflicts with federal OSHA worker protection standards, creating strong grounds for federal preemption challenges:

OSHA Noise Standards (29 CFR 1910.95)

Federal Requirements: OSHA establishes mandatory workplace noise exposure limits:

  • 8-hour exposure limit: 90 decibels (dB)
  • Maximum allowable: 115 dB for short duration exposures
  • Hearing conservation programs: Required when exposure equals or exceeds 85 dB averaged over 8 hours
  • Personal protective equipment: Mandatory when engineering controls cannot reduce noise

Data Center Noise Sources:

  • Cooling systems and industrial HVAC equipment
  • Backup generators and power equipment
  • Server fan arrays and electrical systems
  • Construction and maintenance activities

Legal Strategy: Counties can argue they retain authority to enforce OSHA noise standards because:

  • Federal law preempts conflicting state restrictions
  • Worker safety falls under federal commerce clause authority
  • Counties have constitutional police power duties to protect public health

OSHA Lighting Standards (29 CFR 1910.305)

Federal Electrical Safety Requirements under 29 CFR 1910.305:

  • Adequate illumination for safe work performance
  • Emergency lighting systems for evacuation routes
  • Specific lighting levels for different work areas
  • Electrical installation and maintenance standards

Legal Challenge Opportunity: Counties can assert authority to inspect and enforce OSHA lighting compliance, arguing state law cannot eliminate federal safety requirements.

Documentation Strategy for OSHA Challenges

Noise Monitoring: Residents and workers should:

  1. Measure and document noise levels using calibrated decibel meters
  2. Record times and duration of noise exposure above OSHA limits
  3. Document health impacts including hearing loss, sleep disruption, and stress
  4. Photograph noise sources and industrial equipment creating excessive sound

Lighting Documentation: Monitor and record:

  1. Excessive artificial lighting affecting neighboring properties
  2. Light pollution impacts on rural and residential areas
  3. Safety lighting deficiencies that may violate OSHA standards
  4. Energy consumption patterns affecting local utility infrastructure

Supremacy Clause Application: Federal OSHA standards preempt state laws that prevent local enforcement of worker safety requirements. Counties can argue:

  1. Federal Authority: OSHA standards derive from federal commerce clause power over workplace safety
  2. Conflict Preemption: State law directly conflicts with federal safety requirements
  3. Field Preemption: Federal government has occupied the field of occupational safety standards
  4. Local Police Power: Counties retain constitutional authority to protect public health and safety

Immediate Actions Using OSHA Standards

For Residents:

  • File OSHA complaints about noise and safety violations
  • Document health impacts from excessive noise exposure
  • Request county enforcement of federal safety standards
  • Contact labor unions and worker safety organizations for support

For Counties:

  • Assert retained authority under federal preemption doctrine
  • File federal court challenges to state restrictions on OSHA enforcement
  • Coordinate with state labor departments on worker safety issues
  • Maintain inspection authority for federal compliance verification

For Workers:

  • File OSHA complaints about unsafe working conditions
  • Document noise exposure levels exceeding federal limits
  • Report inadequate safety lighting to federal authorities
  • Organize with labor unions for collective federal complaints

Multi-Level Enforcement: Coordinate challenges across:

  1. Federal OSHA Complaints: Direct federal enforcement actions
  2. Federal Court Challenges: Constitutional preemption litigation
  3. State Court Actions: Challenge state statute under federal supremacy
  4. Administrative Appeals: Contest agency interpretations of federal requirements

This federal preemption strategy provides residents with powerful legal tools that cannot be eliminated by state legislation, creating a robust foundation for challenging data center exemptions from health and safety protections.

Additional Resources and Historical Documentation

FOIA Request: Economic Impact Documentation

On March 21, 2026, a formal Freedom of Information Act request was submitted to the West Virginia Department of Commerce and related agencies seeking comprehensive documentation of the Berkeley County data center’s compliance with House Bill 2014’s economic impact requirements.

FOIA Request Details

Primary Recipients:

  • Dr. Matthew Herridge, Secretary of Commerce
  • Garner Marks, General Counsel / HB 2014 Program Officer
  • Christine H. Davies, Deputy Secretary for Economic Development
  • Nicholas Preservati, Deputy Secretary of Commerce

Key Records Requested:

  • All economic impact studies, reports, and analyses for the Berkeley County data center
  • Documentation demonstrating HB 2014 compliance, including:
    • Job creation projections (temporary and permanent)
    • Wage data and job quality assessments
    • Tax revenue calculations and net fiscal impact analyses
    • Infrastructure cost assessments and public expenditure documentation
  • Methodologies, assumptions, and data inputs used in economic evaluations
  • Environmental and land-use assessments considered in economic analysis
  • All communications between state agencies and project developers
  • Financial sustainability analyses for data center operations, particularly those supporting AI workloads

Transparency Significance

This FOIA request addresses the constitutional transparency concerns outlined in this analysis by seeking:

  1. Evidence of Economic Impact: Verification that the project meets HB 2014’s requirement for “measurable and positive economic impact to the state”
  2. Methodology Disclosure: Understanding how the state calculates and validates economic benefits
  3. Infrastructure Cost Accounting: Full documentation of public expenditures and utility impacts
  4. Industry Reality Check: Analysis accounting for the financial challenges facing major AI companies

The request emphasizes that HB 2014’s use of lowercase “state” indicates a broad, comprehensive economic standard rather than narrow focus on direct tax revenue. This interpretation requires demonstrating net positive economic value when accounting for:

  • Public infrastructure costs
  • Environmental impacts and mitigation expenses
  • Long-term operational sustainability
  • Industry-wide financial challenges in the AI sector

Public Interest Justification

The FOIA request explicitly cites public interest in understanding government decision-making and economic development policy, requesting fee waivers to ensure citizen access to this critical information. Under West Virginia law (W.Va. Code §29B-1-1), this information cannot be withheld based on what officials believe “is good for the people to know.”

Status: The Department of Commerce has five business days to respond under state law. Any delays or denials will be documented as additional evidence of the transparency violations discussed in this analysis.

Full Document: The complete FOIA request with transmission certification is available for public review and reference.

Download: FOIA Request - Berkeley County Data Center Economic Impact Documentation (DOCX)

Complete Analysis Download

Word Document Version: The complete analysis is available as a Word document for offline reference, printing, and sharing:

Download: Berkeley County Data Center Complete Analysis (Word Document)

Berkeley County Electoral Analysis Spreadsheet

For detailed electoral analysis and specific candidate positions on data centers, reference this comprehensive Berkeley County elections tracking spreadsheet:

Berkeley County 2026 Elections Analysis (Credit: Jackie Curry, No Data Centers in the Eastern Panhandle)

What’s Included: This spreadsheet contains detailed tracking of:

  • Candidate positions on HB 2014 and data center development
  • Incumbent voting records on data center legislation
  • Business ownership information for potential conflicts of interest
  • Source documentation for all position statements
  • Primary and general election matchups across all Berkeley County districts

Note: Candidate positions on data center issues should be verified through direct contact with campaigns, official statements, or documented public positions rather than third-party compilations.

Historical Archive Instructions: To preserve this electoral data for historical purposes, voters should:

  1. Open the spreadsheet link above
  2. Go to File > Download and select your preferred format (Excel, CSV, PDF)
  3. Save locally with filename: Berkeley_County_2026_Elections_Analysis_[DATE]
  4. Archive for future reference and transparency tracking

Local Archive: A historical snapshot has been saved for transparency and reference purposes:

Download: Berkeley County 2026 Elections Analysis (CSV)

Voter Guide PDF: The comprehensive Berkeley County voter guide with candidate positions:

Download: Berkeley County 2026 Primary Voter Guide (PDF)

This spreadsheet provides crucial candidate-specific positions beyond what’s covered in this blog post and the Berkeley County Voter Guide PDF, making it essential for informed voting decisions.

References

For more information about Berkeley County elections and voter registration, visit berkeleywv.org. To track the Penzance project’s development, monitor county commission meeting agendas and public comment opportunities.

  1. West Virginia Office of the Governor Patrick Morrisey. “Governor Morrisey Announces $4 Billion Private Investment in West Virginia’s First High Impact Intelligence Center.” February 26, 2026. ↩

  2. West Virginia Division of Economic Development. “$4 Billion Data Center Campus Planned for Berkeley County, Positioning West Virginia for the AI and Cloud Economy.” February 26, 2026. ↩

  3. Berkeley County Commission records and WV MetroNews. “Governor announces a developer for big West Virginia data center spot.” February 26, 2026. ↩

  4. Mytton, David. “Data Center Water Consumption.” Nature Climate Change, 2023. DOI: 10.1038/s41558-023-01750-1. ↩

  5. Food and Water Watch. “Data Centers Consuming and Wasting Our Water.” Research Report, 2024. ↩

  6. Berkeley County Commission public meeting records. Journal-News. “Berkeley County comes out in force against planned Bedington data center.” March 2026. ↩

  7. Berkeley County Clerk. “2026 Election Calendar.” Berkeley County Elections Office. ↩

  8. West Virginia Legislature. “HB 2014 Roll Call Votes.” LegScan Bill Tracking System. ↩

  9. West Virginia Watch. “Morrisey signs priority bill meant to incentivize data centers, microgrids locating in WV.” April 30, 2025. ↩

  10. West Virginia Code §29B-1-1. “Freedom of Information Act - Legislative Findings.” West Virginia State Legislature. ↩

  11. West Virginia Code §5B-2-21b. “Authority to assist certified microgrid district projects and certified high impact data center projects.” West Virginia State Legislature. ↩

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Jesse Borden

Jesse Borden

Software Engineer with an interest in hands on learning

I have several years of professional Information Technology (IT) experience leading staff and projects within the Department of War (DOW). I have managed Service Desk, Web Application Development, and System Administration teams. My two greatest passions are learning and conti...

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