FOR IMMEDIATE RELEASE
August 28, 2026

Contact:

Olivia Miller, Interim Executive Director, West Virginia Highlands Conservancy, olivia.miller@wvhighlands.org

Nikki Forrester, Director of Communications, Tucker United, comms@tuckerunited.com

Jim Kotcon, West Virginia Chapter Sierra Club, jkotcon@gmail.com

CHARLESTON, W.Va.— Community and conservation groups will be asking West Virginia’s courts to make sure their challenges to the air permit issued by the West Virginia Department of Environmental Protection to data center developer Fundamental Data for a proposed gas plant in Tucker County are heard. The request follows two procedural orders issued by the Intermediate Court of Appeals on Aug. 26. Neither order decided whether the air permit is valid or whether the company properly withheld large portions of its permit details as confidential business information.

The groups anticipated a jurisdictional problem because state law contains conflicting directions about which court should review decisions of the West Virginia Air Quality Board. As such, the petitioners initially filed their appeal of the final permitting decision in both the Supreme Court of Appeals of West Virginia and the Intermediate Court. They plan to ask the Supreme Court to determine which judicial division should hear the merits of the appeal.

In the final-permit case, filed by Appalachian Mountain Advocates on behalf of Tucker United, the West Virginia Highlands Conservancy and Sierra Club, the Intermediate Court concluded that the appeal belongs before the state Supreme Court and dismissed it as improperly docketed. The court noted that the delay occurred through no fault of the parties and said that if it were in the Supreme Court’s position it would find good cause for allowing an out-of-time filing. Fundamental Data has not disputed that the petitioners have a right to judicial review or that they filed timely notices of appeal.

In the related confidentiality case, filed by local attorney Brent Easton on behalf of Tucker United, Friends of Blackwater and the West Virginia Highlands Conservancy, the Intermediate Court ruled that it lacked jurisdiction and that issuance of the final permit had made the challenge to the draft permit moot. That order said the question of whether information was properly treated as trade secrets or confidential business information had been preserved for review with the final-permit appeal. 

Statements from the petitioning organizations:

“These decisions have been about which court should hear our cases, not whether Fundamental Data’s air permit is valid or whether its extensive use of confidential business information was justified,” said Olivia Miller, interim executive director of the West Virginia Highlands Conservancy. “We anticipated this might be an issue and tried to file in both courts. Our filing was not accepted by the Supreme Court, and the Intermediate Court has now said the case belongs in the Supreme Court. We are disappointed that, after all this time, no court has heard the merits. We want the courts to decide where it belongs and give us a fair hearing.

Miller added, “Our position remains unchanged. A giant power plant built to serve what Fundamental Data has described as one of the largest data center complexes in the world should not be classified as a minor source of air pollution. From the beginning, we have raised concerns that so much of the permit was redacted that the public never had a meaningful opportunity to review or critique it. The evidence presented by our expert also deserves full consideration. West Virginians have legitimate concerns about their health, their environment and their right to have a voice in decisions that will fundamentally affect their communities. We just want those concerns to be heard.

“This case also raises serious ethical and conflict-of-interest concerns. House Speaker Roger Hanshaw is representing an out-of-state developer against West Virginia residents while the West Virginia Legislature will likely consider changes to HB 2014 in the upcoming session. If the case continues into the regular session, the public deserves a clear answer about whether he will step away from the case or from legislation affecting his client.”

“The proposed air pollution permit would authorize one of the largest power plants in West Virginia, and it is absurd that WVDEP would continue to call that a minor source,” said Jim Kotcon, conservation chair of the West Virginia Chapter of Sierra Club. “We recognize that there is some confusion in various state statutes as to who should hear our appeal, but someone needs to take a hard look at the merits of the case. This case could set precedents for a number of other large power plants, and the amount of air pollution that West Virginians would face deserves a full review of the facts, not just a passing of the buck from one court to another. The health and environmental impacts from air pollution are real and deserve immediate attention.”

“Tucker United is encouraged that the appeals court detailed a roadmap for refiling our appeal of Fundamental Data’s questionable air-quality permit and its suspect approval by state officials,” said Amy Margolies, executive director of Tucker United.

“We will press ahead and compel the courts to act because West Virginia officials are blatantly ignoring the serious concerns that residents have about Fundamental Data’s giant power plant and data center proposal.

“Over the past year and a half, opposition from West Virginia residents to Fundamental Data’s proposal has grown exponentially, and it continues to grow each day as concerns mount about the harms of data centers. We remain hopeful that the West Virginia court system will do its due diligence to protect the safety and voice of its people.”

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