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

82 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, according to available information, reclaimed (treated wastewater) sources can supply only approximately 60% of the facility’s projected water needs — leaving a critical 40% shortfall that would require withdrawals from conventional freshwater sources. This gap has not been publicly disclosed or addressed by state or project officials.6

Water Usage Public Records

As of May 2026, no public water withdrawal permit for the Penzance Bedington Campus has been published by the West Virginia Department of Environmental Protection (WV DEP). Key public records residents and advocates should seek through FOIA requests include:

  • WV DEP Water Withdrawal Permits: Any withdrawal exceeding 750,000 gallons per day requires a permit under the WV Water Resources Protection Act. A facility consuming up to 5 million gallons daily would require multiple permit filings with public notice requirements.
  • Berkeley County Public Service District records: The BCPSD manages regional wastewater treatment and reclaimed water infrastructure. Public records requests to the BCPSD can reveal available reclaimed water capacity and whether the system can support industrial reuse at the scale Penzance requires.
  • HIIC Designation Application: Under HB 2014, the WV Division of Economic Development must review applications for “High Impact Intelligence Center” designation — these applications should contain water infrastructure plans and should be subject to FOIA disclosure.
  • BCDA Project Records: The Berkeley County Development Authority, despite its NDA with Penzance, must produce any water impact studies under FOIA to the extent they constitute public records.

The Reclaimed Water Gap: What 60% Means in Practice

The approximately 60% reclaimed water supply — if accurate — represents millions of gallons per day potentially met through non-potable reuse. The remaining 40% deficit, however, still requires freshwater withdrawals from regional sources:

  • At the 5 million gallon/day maximum estimate, 40% represents 2 million gallons per day from freshwater sources
  • Shallow residential wells in the Falling Waters area are particularly vulnerable to drawdown from large-scale industrial withdrawals
  • The Opequon Creek watershed capacity and drought resilience must be assessed against this withdrawal volume
  • Agricultural users and municipalities competing for the same water resources face potential shortfalls

WV Delegate Tristan Leavitt (R-Kanawha) noted in May 2026 that many modern data center facilities operate as “closed-loop systems” requiring only “initial water.” However, even closed-loop cooling towers require continuous evaporative makeup water — the 60% reclaimed water figure does not eliminate the facility’s ongoing freshwater demand.7

State Tax Commissioner Matt Irby acknowledged in May 2026 that the state “doesn’t really have a data center to value” — suggesting that the economic impact projections used to justify HB 2014 were made without accurate water usage modeling, raising additional questions about whether environmental impact assessments were properly conducted.7

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:8

  • 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.

Recent Developments: March to May 2026

Community Town Hall (March 23, 2026)

Hundreds of Berkeley County residents packed Spring Mills High School on March 23, 2026, for a town hall meeting about the proposed Falling Waters data center. Speakers raised urgent concerns including:9

  • Water usage: Questions about the 5 million gallon daily water consumption estimate and impacts on shallow wells and local water supplies
  • Property values: Worries about neighborhood impacts adjacent to the 548-acre site
  • Noise pollution: Concerns about industrial equipment noise affecting residential quality of life
  • Wildlife impacts: Concerns about habitat disruption across the large development footprint
  • Flooding zones: Questions about construction in areas with shallow wells and identified flood zones
  • Democratic process: Multiple speakers questioned why development proceeded despite local opposition, with one stating: “all of this legislation bypasses all of our democracy”

Many attendees described the project as a “done deal” decided in secret. Questions were also raised about whether data centers qualify as public utilities and whether eminent domain protections apply to residents.

Commission President Responds (March 26, 2026)

Following the town hall, Commission President Eddie Gochenour appeared on Panhandle Live to address the community’s reaction. Key revelations included:10

  • The Berkeley County Development Authority signed a non-disclosure agreement (NDA) with the project, confirming transparency concerns raised by residents throughout this analysis
  • State officials first contacted local leaders on February 20, 2026, just six days before Governor Morrisey’s public announcement on February 26
  • “HB 2014 removed any say from Berkeley County’s leadership. It’s all on the state level,” Gochenour stated, publicly acknowledging the commission’s limited authority over the project
  • Commissioners chose not to respond to speakers at the town hall meeting to avoid disruption
  • Gochenour denied allegations of financial impropriety and committed to raising community concerns about water quality, air quality, and setback requirements with the governor — while maintaining the commission had limited decision-making authority

Statewide Data Center Discussion Expands

On March 30-31, 2026, the Stubblefield Institute hosted a sold-out panel discussion in Shepherdstown titled “Data Centers in our Backyard – Jobs, Infrastructure & Community Impact,” available via livestream. Key voices and takeaways included:11

  • Ashley Horst (Stubblefield Institute Executive Director): “We don’t understand what the impact of this is on energy, on water. We don’t know exactly what kinds of jobs…”
  • Jefferson County Commissioner Cara Keys: “You can support data centers, and be against the guardrails lacking in HB 2014”
  • Tucker United Executive Director Amy Margolies emphasized communities want “a seat at the table” in project decisions
  • Chris Morris (State Division of Economic Development, data economy office): “We don’t hand out HIDC designations like candy…I would rather have seven [successful] projects statewide than approve 100 and fail 95%”

Additionally, a QTS Data Center Campus spanning approximately 300 acres across Jefferson and Berkeley counties was disclosed as another major Eastern Panhandle data center development, underscoring the region’s growing role in West Virginia’s data center expansion.

On April 16, 2026, U.S. Senator Shelley Moore Capito emphasized that “early and strong engagement” between developers and local communities is essential for successful projects. Capito acknowledged property tax revenue benefits while tempering job creation expectations, noting that data centers contribute significantly to local property taxes rather than employment.12

Tax Revenue Dispute (April 2026)

In a significant escalation, Berkeley County officials submitted a 10-page letter to the state tax department on April 26-27, 2026, raising 14 specific legal and fiscal concerns about HB 2014’s data center tax revenue distribution formula.

Key concerns raised by County Attorney Anthony Delligatti on behalf of the commission:13

  • School funding threat: The state school aid formula could be severely harmed — Berkeley County’s “local share” of property taxes would be artificially inflated by data center property values from which the county receives no actual revenue, potentially reducing state school aid substantially
  • Constitutional question: Commissioner John Hardy questioned whether using local property tax revenue for state income tax reduction is constitutional, stating: “I think the judicial branch is going to have to weigh in on this”
  • Bond capacity risk: Officials fear the law may unconstitutionally seize local funds, threaten school bonding capacity, and trigger mandatory tax rollbacks for residents
  • The letter stated: “These questions bear directly on the fiscal health of the Berkeley County Commission, Berkeley County’s schools, the integrity of voter-approved bond levies”

State Tax Commissioner Mark Morton defended the bipartisan legislation, noting that counties retain 100% of base property value revenue and 30% of growth revenue, and characterizing the law as beneficial to all West Virginians.

May 2026: Post-Primary Legislative Developments

Following the May 12, 2026 primary election, West Virginia House delegates convened for two days of planning meetings on May 18-19, 2026, with data center transparency as a central agenda item — the first formal legislative acknowledgment that HB 2014’s implementation has created unresolved problems.14

Key developments from the May 2026 House discussions:

  • Del. Mike Pushkin (D-Kanawha) directly criticized HB 2014, stating the law “removes local control and removes any reason for the developers to be transparent,” adding that developers have not held community town halls
  • Del. Jordan Maynor (R-Raleigh), who attended Data Center World in Washington, D.C., reported that industry representatives say they want to “get into these communities” and “be open as humanly possible”
  • Del. Tristan Leavitt (R-Kanawha) offered the developer defense: projects haven’t held community meetings because “none of these projects have been approved by the state yet”
  • State Tax Commissioner Matt Irby revealed a fundamental problem: “Our numbers aren’t really set in stone…we don’t really have a data center to value,” and “There is a lot of missing information…in trying to tell you what the value of a data center is” — raising serious questions about whether economic impact projections used to justify HB 2014 were based on reliable data7

Expanding statewide impact: As of May 2026, proposed major data center sites in West Virginia include Berkeley County (Penzance), Jefferson County (QTS campus), Canaan Valley area, Putnam County (Google), and Mason County — meaning the local control and transparency problems created by HB 2014 now affect communities across the entire state, building a broader coalition for legislative reform.

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 9.15

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)

Update (May 2026): The West Virginia Republican Party implemented a closed primary for 2026, restricting ballot access to registered Republicans only — unaffiliated voters can now only participate in the Democratic primary. Berkeley County Clerk Tony Petrucci confirmed some temporary party switching by Democratic and independent voters wanting to participate in Republican contests, validating the crossover voting strategy described in this analysis. However, as of May 6, 2026, county clerks reported low early voting turnout, with Berkeley County closing 2 of its early voting locations ahead of the May 12 election.1617

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.

May 12, 2026 Primary Election Results and Analysis

Update (May 13, 2026): The West Virginia Republican Primary took place on May 12, 2026, with statewide turnout of just 20.91% — approximately 250,755 total ballots cast, one of the lowest primary participation rates in recent WV history.18

HB 2014 Supporters: What the Primary Decided

U.S. Senate (Statewide)

Result: Capito WINS — HB 2014 supporter advances to November general election

Senator Shelley Moore Capito won the Republican primary decisively; the Associated Press called the race when just over 6% of votes were counted, with Capito already leading by thousands of votes. Her approximately $4 million campaign war chest, plus early endorsements from President Trump and Vice President Vance, overwhelmed challengers Tom Willis, Bryan McKinney, Janet McNulty, Alexander Gaaserud, and David Purkey.19

November matchup: Capito vs. Rachel Fetty Anderson (D), a former Morgantown City Council member who won the Democratic primary over former WV Senate President Jeff Kessler.

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

Result: Thorne WINS — Appointed HB 2014 supporter survives challenge with Morrisey backing

Senator Darren Thorne — appointed December 2024 by Governor Justice without a public vote, and who voted YES on HB 2014 as a House Delegate before his Senate appointment — won the Republican primary. Governor Morrisey endorsed Thorne, and his overall 9-for-12 performance on targeted Senate races extended to this seat, defeating challengers Ken Reed (former Delegate, Hedgesville) and Robert Wolford (Points). The split field between two challengers benefited Thorne by dividing the anti-incumbent vote.20

WV State Senate District 16 (Berkeley County — West Martinsburg/Inwood)

Result: Barrett WINS — HB 2014 supporter defeats Democratic-crossover-target

Senator Jason Barrett, who voted YES on HB 2014’s 32-1 Senate passage, defeated challenger Chantele Mack. Barrett’s established incumbent infrastructure proved more durable than anticipated challenger strength.

Clay Riley (WV House — Harrison County)

Result: Riley WINS — Key HB 2014 advocate survives PAC-funded challenge

Delegate Clay Riley, described as “a longtime proponent for data centers” and a central HB 2014 advocate, survived a PAC-funded primary challenge. This outcome suggests the data center industry is actively protecting its legislative champions.20

Berkeley County Commission, Norborne District

Result: Gochenour WINS — Challenger Mattson defeated

Eddie Gochenour (R), Commission President and incumbent, defeated challenger Ken Mattson (R, Inwood). Gochenour’s incumbency advantage, name recognition, and party backing proved decisive. Gochenour — who has not publicly opposed HB 2014 or its impact on county zoning authority — retains his commission seat through November 2026 and is expected to run unopposed or face a general election contest. Mattson’s loss eliminates the primary path to replacing a commission incumbent who has not championed restoration of local zoning control stripped by HB 2014.

Statewide Primary Context: What Changed

  • At least 14 Republican House members lost renomination statewide — demonstrating primary volatility is real, even if HB 2014 supporters in Berkeley County survived21
  • Judicial incumbents suffered crushing losses: Two WV Supreme Court of Appeals incumbents lost (H.L. Kirkpatrick beat Gerald Titus; Bill Flanigan beat Thomas Ewing by 28,177 votes), and one Intermediate Court of Appeals judge was defeated — the very courts where constitutional challenges to HB 2014 would be heard now have dramatically changed composition
  • Governor Morrisey’s political capital remains strong (9-for-12 Senate target success), meaning the governor who signed HB 2014 can still protect its legislative supporters in primaries
  • Low turnout is both warning and opportunity: 20.91% participation means that organized, issue-focused opposition in November could have outsized impact

Post-Primary Assessment

Despite the primary results, the fundamental political dynamics have shifted: The WV House is now actively discussing HB 2014’s transparency failures (May 18-19, 2026 meetings), multiple counties are raising legal objections, and the data center expansion to Putnam, Jefferson, and Mason counties has created a statewide opposition movement that extends beyond Berkeley County.

November 2026 General Election: Anticipated Contests

With primaries concluded, the following races are anticipated to be the most consequential for HB 2014 accountability in November 2026:

U.S. Senate: Capito (R) vs. Anderson (D) — Bellwether Data Center Race

Senator Capito faces Democrat Rachel Fetty Anderson. Capito’s acknowledgment that “early and strong engagement” between developers and communities is essential — combined with her support for the federal data center framework — makes her campaign the state’s highest-profile opportunity to send a message about HB 2014’s local impact.

The challenge: Capito’s structural advantages (name recognition, $4M+ war chest, Trump endorsement, WV’s +R registration dominance) make this extremely difficult. However, Eastern Panhandle discontent with HB 2014 — combined with the rare occurrence of a statewide-caliber Democratic candidate in Rachel Fetty Anderson — makes this more competitive than a typical WV Senate race.

Eastern Panhandle strategy: Berkeley and Jefferson Counties represent significant vote totals and have direct data center impacts. Anderson can make HB 2014 accountability central to her Eastern Panhandle campaign message while Capito will need to address local concerns about transparency, water resources, and school funding.

WV House Open Seats: Districts 90, 91, 96

These open seats in Berkeley County and the Eastern Panhandle area represent the most direct opportunities to elect legislators who have never voted on HB 2014 and can be forced to make explicit commitments to reform or repeal it before taking office.

Key question: Will these candidates commit in writing to:

  • Sponsoring legislation to restore county zoning authority
  • Returning the full school funding formula to pre-HB 2014 calculations
  • Requiring public environmental impact disclosure for HIIC designations

WV Judicial Races: Courts That Will Decide HB 2014’s Fate

The new WV Supreme Court of Appeals and Intermediate Court of Appeals members who won in the May 12 primary (H.L. Kirkpatrick, Bill Flanigan, Jim Douglas) will face voters in November or take their seats after the election. These are the courts where:

  • Berkeley County’s constitutional challenge to HB 2014 school funding effects would be heard
  • FOIA enforcement actions against state agencies would be appealed
  • Constitutional challenges to HB 2014’s home rule provisions would be decided

The judicial wild card: The new judicial composition is uncertain on data center issues. Voters and advocacy groups should question all judicial candidates about their approach to government transparency cases and local government authority.

Strategic Focus for November 2026

  1. Candidate questionnaires: Circulate written questionnaires to all November candidates demanding explicit positions on HB 2014 reform — make non-response itself a story
  2. Coalition coordination: Connect Berkeley County opposition with emerging movements in Putnam (Google/Buffalo), Jefferson (QTS), and other affected counties for coordinated voter education
  3. Endorsement alignment: Environmental groups, ratepayer advocates, and fiscal conservative organizations should coordinate endorsements to maximize impact on HB 2014 supporters
  4. Anderson campaign outreach: Contact the Rachel Fetty Anderson US Senate campaign to ensure HB 2014 local control and school funding issues are incorporated into Eastern Panhandle campaign messaging
  5. Voter registration: Ensure all affected residents are registered — the general election has no party restriction, giving all voters equal voice

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:22

  • 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 Morrisey23

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 tool24
  • 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)
  • Write-In Alternative: Write-in candidates for the primary can still register until March 24, 202625
  • 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.”26 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.

WV Legislative Conflicts of Interest

The rapid passage of HB 2014 — which disproportionately benefits data center developers, real estate investors, energy companies, and technology infrastructure firms — has raised questions about potential conflicts of interest among legislators who championed the law. West Virginia does not require detailed financial disclosure statements comparable to federal ethics requirements, creating significant opacity around legislators’ potential financial interests in data center-related industries.

Campaign Finance and Industry Connections

Key HB 2014 Advocates With Documented Industry Ties:

  • Speaker Roger Hanshaw (lead sponsor): As House Speaker, Hanshaw controls committee assignments and floor votes. His role as lead sponsor of legislation creating billions in corporate tax benefits, without requiring public environmental assessments or local input, raises questions about donor relationships with energy and technology interests that citizens cannot easily verify under current disclosure rules.

  • Delegate Clay Riley (R-Harrison): Described by WV MetroNews as “a longtime proponent for data centers,” Riley survived a PAC-funded primary challenge in May 2026 — indicating organized data center industry support for his reelection. Riley’s longstanding data center advocacy predates the Penzance announcement, suggesting a relationship with the industry that voters deserve to understand.

  • Delegates Fehrenbacher, Anderson, Zatezalo, Akers, Hornbuckle (co-sponsors): The co-sponsors of a law worth tens of billions in corporate benefits have financial disclosure obligations only under WV’s limited state ethics requirements — which are less stringent than federal standards and not easily searchable by the public.

  • Delegates Tristan Leavitt and Jordan Maynor: Both attended Data Center World in Washington, D.C. (a major industry conference) and subsequently became vocal advocates for data center development within the WV House. While attending industry events is not inherently improper, any hospitality or benefits provided by data center industry hosts at such events should be disclosed under WV ethics requirements.

The Transparency Paradox

The Legislature that passed HB 2014 — stripping local transparency rights — is simultaneously led by a Speaker proposing to exempt the Legislature itself from West Virginia’s Freedom of Information Act, making it impossible for citizens to discover what communications occurred between legislators and data center lobbyists during HB 2014’s drafting and passage.

This creates a structural conflict: legislators who may benefit from corporate relationships passed a law benefiting those corporations, then seek to hide the communications that would reveal those relationships.

The Development Authority NDA Problem

The Berkeley County Development Authority’s non-disclosure agreement with Penzance Management means:

  • Commission members cannot reveal what they were told about the project during pre-announcement briefings (state officials contacted local leaders just six days before the public announcement)
  • Financial arrangements between the state and developer remain hidden from public scrutiny
  • Who specifically lobbied for the project within state government cannot be publicly confirmed
  • Whether any elected officials or their associates have financial stakes in Penzance or its facility tenants cannot be verified through public records

Victor Tolkan’s Confidentiality Wall

Penzance Managing Partner Victor Tolkan specifically declined to reveal who will occupy the facility, citing “confidentiality requirements.” This prevents public understanding of:

  • Whether any WV officials, their family members, or associates have financial interests in facility tenants
  • Whether any connection exists between facility buyers and legislators who advocated for HB 2014
  • Whether state officials received any financial benefits from the development process

How Citizens Can Investigate Conflicts of Interest

Citizens and journalists seeking to investigate potential conflicts should file the following public records requests:

  1. Campaign Finance Records: WV Secretary of State campaign finance filings for all HB 2014 sponsors and co-sponsors — search for contributions from real estate, energy, data center, and technology companies in the two years preceding HB 2014 (2023-2025). Available at sos.wv.gov

  2. Ethics Disclosure Statements: WV Ethics Commission personal financial disclosure statements for all legislators who sponsored or voted for HB 2014. Available at ethics.wv.gov

  3. BCDA Communications: All Berkeley County Development Authority communications with Penzance Management and state officials from 2024 through present (FOIA request to BCDA)

  4. Governor’s Office Contacts: All communications between Governor Morrisey’s office and Penzance Management or data center lobbyists from 2024 through present (FOIA request to Governor’s Office)

  5. Division of Economic Development Records: All communications with data center developers and lobbyists preceding HB 2014’s introduction in the 2025 legislative session (FOIA request to Division of Economic Development)

  6. Lobbyist Registration: Check WV Ethics Commission lobbyist registration records to identify all lobbyists who worked on HB 2014 on behalf of data center, energy, and real estate interests — and which legislators they reported meeting with

Filing Ethics Complaints

Citizens who obtain evidence of legislators voting on matters where they had undisclosed financial interests can file formal ethics complaints with the WV Ethics Commission at 304-558-0664 or online at ethics.wv.gov. The Commission investigates violations of the WV Ethics Act, which requires that public servants “use their positions for the public’s benefit and not for private gain.”

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:27

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.

HB 2014 Repeal and Reform: All Available Pathways

West Virginia’s Power Generation and Consumption Act (HB 2014) was signed April 30, 2025 and has a sunset date of December 31, 2055. Citizens concerned about the law’s impact on local control, school funding, water resources, and transparency have eight distinct pathways to seek repeal, amendment, or invalidation:

Pathway 1: Legislative Repeal or Amendment (Most Direct, 2027 Session)

How it works: The WV Legislature can repeal or amend HB 2014 in any regular session. The Legislature meets annually, typically January through April.

2027 Session Opportunity: The November 2026 general election determines who sits in the Legislature beginning January 2027 — making November 2026 the pivotal moment for legislative reform.

Current legislative momentum: The WV House convened explicit data center transparency meetings on May 18-19, 2026 — the first post-primary legislative acknowledgment that HB 2014’s implementation has created problems. Del. Pushkin’s direct criticism of HB 2014’s transparency failures signals growing internal legislative pressure.14

Priority amendments to demand from all 2026 candidates:

  • Restore county and municipal zoning authority over data centers
  • Require public environmental impact assessment before HIIC designation approval
  • Return 100% of diverted property tax increment to situs counties, or restore Berkeley County school funding calculations
  • Mandate water usage disclosure and independent environmental permitting
  • Prohibit NDAs between public officials and private developers seeking government benefits
  • Remove HB 2014’s exemption of legislators from Freedom of Information Act obligations

Special Session option: The Governor can call a special session at any time. Documented economic harm to Berkeley County schools from HB 2014’s tax formula — as outlined in the county’s 14-point legal letter — could provide grounds for a legislative emergency session before January 2027.

Pathway 2: Constitutional Challenge in the Courts

Status: Berkeley County Commissioner John Hardy publicly stated: “I think the judicial branch is going to have to weigh in on this.” The county’s April 2026 letter raising 14 specific legal and fiscal concerns signals active preparation for legal challenge.

Primary grounds for judicial challenge:

a. School Funding Diversion: HB 2014’s tax formula artificially inflates Berkeley County’s assessed property tax base with data center values from which the county receives limited revenue — potentially triggering mandatory school aid reductions under the state equalization formula. This may constitute an unconstitutional taking of school funds without due process.

b. Municipal Home Rule Violation: W.Va. Code §8-1-5a grants municipalities specific home rule powers. HB 2014’s blanket preemption of all local zoning, permitting, and licensing authority may exceed the Legislature’s constitutional authority to strip these powers.

c. County Fiscal Autonomy: The WV Constitution protects county fiscal autonomy and bonding authority. Seizing local property tax revenue increment for state income tax reduction without adequate county compensation may be unconstitutional.

d. Equal Protection: Exempting data centers from licensing, permitting, and zoning requirements that all other businesses must comply with may violate the constitutional guarantee of equal protection under the law.

e. Due Process: Approving major developments affecting property values, water resources, and quality of life without adequate public notice and hearing may violate procedural due process rights of affected residents.

Filing jurisdiction: Per 2022 procedural changes, constitutional challenges to state agency orders must be filed with the WV Intermediate Court of Appeals — whose composition changed significantly in the May 12, 2026 primary.

Pathway 3: Federal Preemption Claims

How it works: Federal law supersedes conflicting state law under the U.S. Constitution’s Supremacy Clause. Areas where federal law may render HB 2014 exemptions unenforceable:

a. OSHA Noise Standards (29 CFR 1910.95): HB 2014 prohibits county noise ordinances, but federal OSHA standards establish mandatory 90 dB workplace noise exposure limits. Counties retain authority to enforce federal safety requirements, and state law cannot eliminate this obligation.

b. Clean Water Act Citizen Suits: If Penzance operations cause water quality violations, residents can file federal CWA citizen enforcement actions after 60-day notice to violators and EPA, regardless of state law exemptions.

c. National Environmental Policy Act (NEPA): If federal permits are involved — including Army Corps of Engineers permits for wetlands, waterways, or flood zones on the 548-acre Bedington site — NEPA environmental review requirements apply and cannot be waived by West Virginia law.

d. National Historic Preservation Act, Section 106: The 548-acre development may affect archaeological or historic resources requiring federal review that state law cannot eliminate.

Pathway 4: FOIA and Administrative Law Challenges (Available Now)

Immediate legal tools that residents can deploy without waiting for elections or court decisions:

a. FOIA Enforcement Actions: Any denial or unjustified delay of public records can be challenged through WV circuit court enforcement. Courts must interpret FOIA liberally in favor of disclosure; successful plaintiffs recover attorney fees under W.Va. Code §29B-1-7.

b. Contested Case Hearings: Under the WV Administrative Procedure Act, residents “adversely affected” by state agency permits have the right to request contested case hearings — for water withdrawal permits, air quality permits, environmental certifications, and any other regulatory approvals related to Penzance.

c. Water Withdrawal Permit Challenges: Any withdrawal of Penzance’s scale must go through a public permitting process at WV DEP, triggering mandatory notice, public comment, and administrative appeal rights.

d. Air Quality and Noise Permit Challenges: Backup generators, industrial cooling equipment, and other facility systems require DEP air and noise permits — each subject to public comment periods and administrative appeals.

Pathway 5: WV Constitutional Amendment

How it works: The WV Constitution can be amended by two successive sessions of the Legislature approving identical text, followed by voter ratification — or through a constitutional convention.

Practical approach: Advocate for a constitutional amendment explicitly guaranteeing county home rule authority over major industrial developments and prohibiting state preemption of local environmental zoning for facilities above defined thresholds. This would constitutionally override HB 2014’s local preemption provisions.

Timeline: Constitutional amendments require multi-year processes, making this most useful as a long-term protection against future HB 2014-style legislation rather than an immediate remedy.

Pathway 6: Gubernatorial Action (Limited Scope)

Current limitations: Governor Morrisey, who signed HB 2014, is unlikely to act against his signature legislation during his current term.

Future executive options (post-2028 gubernatorial election):

  • Issue executive directives requiring maximum public disclosure within HIIC application review
  • Require community engagement hearings as a de facto condition for HIIC designation approval
  • Decline to designate new HIICs that lack adequate environmental review
  • Direct the WV Ethics Commission to more aggressively enforce financial disclosure requirements for legislators voting on data center legislation

Near-term pressure tactic: Even without legislative change, sustained public pressure could prompt Governor Morrisey to voluntarily require community engagement processes — particularly if HB 2014 becomes a campaign liability for Republican candidates in November 2026.

Pathway 7: Federal Congressional Action

Relevant federal opportunities:

  • Legislation restoring local government authority over data center siting, analogous to federal telecom local authority protections
  • Federal environmental review requirements for large data center developments receiving federal tax benefits or using federal power grid infrastructure
  • Federal transparency requirements conditioning federal tax incentives on public environmental impact disclosure

Eastern Panhandle leverage: Senator Capito’s reelection campaign in November 2026 provides citizens with direct leverage. Her statement that “early and strong engagement” between developers and communities is essential creates an opening to demand she sponsor or support federal data center transparency standards — as a condition for Eastern Panhandle voter support.

Pathway 8: Citizen Petition and Coalition Pressure

Active petition: The Change.org petition “Amend HB2014 to Restore Our Right to Self-Determination and Governance” had collected 577 verified signatures as of May 2026 since its March 21, 2026 launch.28 Continued growth demonstrates sustained organized opposition.

Growing statewide coalition: As data center proposals spread to Putnam County (Google, 1,700 acres), Jefferson County (QTS, ~300 acres), Canaan Valley, and Mason County, the coalition opposing HB 2014’s local preemption now extends across multiple counties — creating political pressure that cannot be dismissed as localized Berkeley County opposition.

Multi-county letter strategy: Berkeley County Commission’s April 2026 10-point legal letter to the state tax department creates a template for other affected counties to file similar objections, creating a cumulative record of local government opposition that legislators cannot ignore heading into 2027.

Repeal Pathway Priority Summary

Priority Pathway Timeline Assessment
1 Legislative Amendment (2027 session) 18 months Most achievable — requires November 2026 wins
2 FOIA/Administrative Challenges Immediate High success likelihood — clear legal standing
3 Constitutional Court Challenge 2-4 years Strong legal grounds — Berkeley County signaled intent
4 Federal Preemption (OSHA/CWA) 1-2 years Moderate — requires documented violations
5 Coalition/Petition Pressure Ongoing Supportive of all other pathways
6 Gubernatorial Action Ongoing/2028+ Limited current scope
7 Federal Congressional Action 2+ years Low near-term probability
8 Constitutional Amendment 4+ years Long-term structural protection

Water Usage Public Records and Reclaimed Water Analysis

The Penzance Bedington Campus’s water demands represent one of the most serious — and least publicly documented — aspects of the project. This section compiles what is known from public sources and identifies the critical gaps that demand immediate FOIA investigation.

What Is Publicly Known

Total projected daily water consumption: Up to 5 million gallons per day for cooling operations, based on typical data center consumption at 600 MW critical IT capacity scale. (Data centers typically use 1.8 liters of water per kilowatt-hour of energy consumed for cooling.) A Food and Water Watch report found nationwide data center water consumption tripled between 2014 and 2023.5

Reclaimed water availability: Berkeley County officials identified opportunities to use reclaimed (treated wastewater) water for non-potable cooling. Based on available information, the Berkeley County Public Service District’s reclaimed water infrastructure can supply approximately 60% of the projected daily water needs of the Penzance facility — leaving a 40% gap requiring conventional freshwater withdrawals.

The 40% gap in real numbers: At 5 million gallons/day total consumption, 40% represents approximately 2 million gallons per day from freshwater sources. At minimum water estimates, even 40% of a lower consumption figure represents hundreds of thousands of gallons per day from regional aquifers, streams, and water supply systems.

No public permits found: As of May 2026, no water withdrawal permit for the Bedington Campus has been published by the WV Department of Environmental Protection. This is a critical transparency gap given the facility’s scale.

The Reclaimed Water System: Capacity Questions

The Berkeley County Public Service District (BCPSD) manages regional wastewater treatment infrastructure. Key questions that must be answered through public records:

  • Current daily reclaimed water production: How many gallons per day does the BCPSD’s treatment system currently produce eligible for industrial reuse?
  • Infrastructure upgrade needs: Is the existing reclaimed water system capable of handling industrial-scale delivery to the Bedington site, or would significant new infrastructure be required?
  • Upgrade cost responsibility: If infrastructure upgrades are needed, who pays — the county, the state, or Penzance?
  • Competing reclaimed water needs: Are there other planned uses for BCPSD reclaimed water (irrigation, other industrial uses) that would compete with Penzance’s 60% allocation?

The BCPSD holds a publicly scheduled board meeting (noted on the county calendar for May 26, 2026) — an opportunity for residents to directly raise water capacity questions with the authority that manages this infrastructure.

FOIA Requests to File Immediately

Citizens concerned about the Penzance water impact should file the following records requests without delay:

To WV DEP (Department of Environmental Protection):

  • All water withdrawal permit applications for properties at or near the Bedington Campus (route 11 corridor, Falling Waters District, Berkeley County)
  • Any Section 401 Water Quality Certifications related to the Penzance project
  • All communications between WV DEP and Penzance Management regarding water resources
  • Any environmental impact studies reviewed by WV DEP related to the HIIC application

To Berkeley County Public Service District:

  • Current daily volume of reclaimed water available for non-potable industrial use
  • Any agreements or memoranda of understanding with Penzance Management regarding water supply
  • Engineering studies or capacity assessments related to serving the Bedington Campus
  • Infrastructure upgrade cost estimates for serving the data center

To WV Division of Economic Development:

  • The complete HIIC designation application filed by Penzance Management, including water infrastructure sections
  • All water-related documentation submitted as part of the HIIC review process
  • Any independent environmental assessments of water resource impacts

To Berkeley County Development Authority:

  • All communications with Penzance Management about water supply (noting the NDA may attempt to restrict this — challenge any withholding under FOIA’s liberal interpretation mandate)

Watershed and Well Impacts: What to Document Now

Berkeley County residents should begin documenting baseline water data immediately, before construction begins:

  1. Well water levels: Record current water table levels in residential wells in the Falling Waters District
  2. Flow measurements: Document current flow rates of springs and streams on or near the 548-acre site
  3. Seasonal variation baseline: Record water availability during dry summer months — the baseline against which post-construction impacts will be measured
  4. Water quality testing: Conduct independent water quality testing of residential wells near the site before construction begins (samples to compare against post-construction)

This documentation creates the evidentiary foundation for future legal challenges if construction and operations degrade regional water resources.

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.

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

Click the link above to view or download the FOIA request document

Complete Analysis Download

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

📄 Berkeley County Data Center Complete Analysis (Word Document)

Click the link above to view or download the Word document version

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:

📈 Berkeley County 2026 Elections Analysis (CSV)

Click the link above to view or download the election analysis data

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

📊 Berkeley County 2026 Primary Voter Guide (PDF)

Click the link above to view or download the voter guide

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. ↩ ↩2

  6. Based on Berkeley County official disclosures regarding reclaimed water capacity. Berkeley County Public Service District board meeting scheduled May 26, 2026. Contact: berkeleywv.org. ↩

  7. WV MetroNews. “State officials embrace financial promise of data centers but grapple with assessing value.” May 19, 2026. ↩ ↩2 ↩3

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

  9. WV MetroNews. “Public speaks out on data center planned for Falling Waters area.” March 23, 2026. ↩

  10. WV MetroNews. “Berkeley County Commission president reflects on Data Center town hall meeting.” March 26, 2026. ↩

  11. WV MetroNews. “Lack of local control resonates at discussion of West Virginia’s dive into data centers.” March 31, 2026. ↩

  12. WV MetroNews. “Capito says early community engagement key in data center development.” April 16, 2026. ↩

  13. WV MetroNews. “Berkeley County questions split of data center money under state law.” April 26, 2026; “Tax split for burgeoning data center development needs more clarity, county commissioner says.” April 27, 2026. ↩

  14. WV MetroNews. “House members begin 2 days of meetings including some discussion on data centers.” May 18, 2026. ↩ ↩2

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

  16. WV MetroNews. “Closed Republican primary means more work for election officials, GOP hopes for registration boost.” May 8, 2026. ↩

  17. WV MetroNews. “County clerks reporting low turnout for early voting as primary closes in.” May 6, 2026. ↩

  18. WV MetroNews. “West Virginia major party chairs report success in primary, turn attention to November election.” May 13, 2026. ↩

  19. WV MetroNews. “Republican race for U.S. Senate is called for incumbent Capito.” May 12, 2026. ↩

  20. WV MetroNews. “Some of those involved in targeted races say they’re ready to move on.” May 13, 2026. ↩ ↩2

  21. WV MetroNews. “Primary Election Post Mortem.” May 14, 2026. ↩

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

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

  24. West Virginia Secretary of State. “Candidate Search Tool.” Online Data Services. ↩

  25. West Virginia Secretary of State. “2026 Elections Calendar.” Write-in candidate filing deadline: March 24, 2026 (Primary), September 15, 2026 (General). ↩

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

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

  28. Change.org. “Amend HB2014 to Restore Our Right to Self-Determination and Governance.” Petition launched March 21, 2026; 577 signatures as of May 2026. ↩

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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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