In Tucker County, West Virginia, one developer told the DEP it controlled 10,000 acres — and told the Department of Commerce its project was merely "conceptual." Both agencies say there's no contradiction, because neither one reviews the whole project. That gap isn't a West Virginia quirk. It's the buildout's default operating mode, and it shows up in seven recognizable forms — from "nonroad engine" turbine exemptions in Memphis to shell-company NDAs in Wisconsin to by-right zoning in Virginia. Here's the taxonomy, and the questions that close each gap.
On July 1, 2026, West Virginia's Department of Commerce decided that a data center proposed less than a mile from the towns of Davis and Thomas was "conceptual" — the developer, Fundamental Data, didn't have legal control of the land, so there was nothing yet to review.
There was one problem with that finding. The West Virginia Department of Environmental Protection had already issued Fundamental Data an air pollution permit for the gas plant meant to power the site — a permit that rested in part on the company demonstrating control of that same ground.
Same company. Same 10,000 acres. Two agencies, two answers.
Asked about it by Mountain State Spotlight, both departments sent identical statements denying any discrepancy — and the explanation is the whole story. Air permitting accepts "a lease, purchase agreement, option to purchase, or another legally recognized arrangement." Commerce's High Impact Data Center program uses "distinct statutory criteria, such as recorded deeds and binding commitments, which operate independently of WVDEP's air permitting requirements."
Both statements are true. Neither agency is lying. And that is precisely the point: no one in West Virginia state government is responsible for evaluating the project as a project. During the 2025 comment period, DEP regulators told residents repeatedly that their authority extended only to the natural gas plant — not to the data center the gas plant existed to power.
Tucker United's Nikki Forrester put it more bluntly than any regulator would: the company "lives in the brackish zone between being a microgrid and data center-related project and not having anything to do with data centers so they can skirt regulations and state rules."
Five days after Commerce withdrew its demand for information, a Fundamental Data representative named Ted McGavran appeared before the city council in Belmont, North Carolina — his own hometown — to argue for data center zoning ordinances there. In the same presentation he described the Tucker County project as targeting large-scale clients and 3–5 gigawatts of generation. Nothing conceptual about it.
He also said his company helped write West Virginia's data center law, and summed up the result: "We can do pretty much whatever we want to do up there."
(Fundamental Data spokesperson Andrea Khoury told the outlet McGavran "is not authorized to speak on behalf of the company," that his remarks were "solely in his personal capacity," and denied the company had a hand in drafting the law.)
Forrester's response is the line worth carrying into your own hearing: "Even data center developers don't want these things in their own backyard."
The reason he could advocate for zoning in Belmont while his company faced none in Tucker County is West Virginia HB 2014, the Power Generation and Consumption Act, effective July 11, 2025. Certified microgrid districts and certified high-impact data centers may not be subject to county or municipal zoning, noise, viewshed, lighting, development, or land use ordinances. The state didn't just fragment review — it deleted the one layer of government that answers a phone call from a resident.
Tucker County isn't an outlier. It's one instance of a repeatable pattern: route the project to the venue with the narrowest mandate. Here are the other six forms it takes, each documented somewhere else in the country.
1. Agency-shopping on facts. (Tucker County, WV) Tell each regulator the version of the project that fits its checklist. Because no agency reviews cumulative impact, the versions never have to reconcile.
2. Statutory preemption of the local layer. (WV HB 2014) If certification comes from the state Commerce Secretary and local ordinances are void by statute, the planning-commission hearing — the one place residents reliably get standing — simply never happens. West Virginia went furthest, but per MultiState's 2026 tracker and Prism, a growing number of states have taken up preemption bills. Some WV lawmakers are now moving to restore local control.
3. Reclassifying the equipment. (Memphis, TN) xAI ran gas turbines at its Colossus site while asserting an "operational waiver" to run up to 364 days without a permit; the Shelby County Health Department treated temporary turbines as "nonroad engines" exempt from permitting. The NAACP and the Southern Environmental Law Center sued and appealed, arguing no Clean Air Act framework allows installing and operating that generation permit-free. The turbines eventually got a permit covering 15 units — as secondary emergency backup.
4. Sizing to stay under the threshold. Backup generation is routinely permitted as synthetic minor — a permit whose explicit purpose is to cap hours so the site never becomes a Title V major source. One Georgia data center permit covering 50-plus diesel generators states outright that it exists "for the purpose of establishing practically enforceable emission limitations such that the facility will not be considered a major source." That's legal and routine. It also means the community's public-participation rights are set by an hours cap that most residents never see and no one independently meters.
5. Contracting away disclosure. (WI, MN, TN, AZ) Wisconsin Watch found at least four Wisconsin communities signed NDAs before any public process: Beaver Dam signed with Balloonist LLC on Dec 1, 2023 — barred from even confirming "the existence of the project" — and the $1B, 520-acre Meta project wasn't announced for 14 months. Menomonie signed with the same shell in Feb 2024 ($1.6B, announced July 2025); Kenosha with Microsoft in May 2024; Janesville with Viridian in Sept 2025 ($8B). Minnesota officials used the code name "Project Bigfoot" in public documents for over a year while Meta worked through Jimnist LLC. Public Citizen reports 80% of Virginia localities with data centers have NDAs in place, and that at least ten states have introduced bills to restrict them. As one Oklahoma legislator framed it: where you want to put your data center is not a trade secret.
6. Zoning it by right. (VA) You don't need preemption if the land is already zoned for it. In Franklin County, Virginia, data centers are permitted by right in the Regional Enterprise Park district and face no restriction at all on unzoned property — meaning a campus can be built with no public hearing and no supervisors' vote, only site plans and building permits. Goochland permits them by right across most of a designated district. Loudoun County has been unwinding exactly this fast-track status.
7. Redacting the price. Even when a project reaches a public regulator, the economics often don't. The Illinois Attorney General sought a contested hearing over "heavily redacted" ComEd data center special contracts. In Montana, advocates challenged the PSC's ability to keep data center terms secret. And Earthjustice's May 2026 Mississippi report argues incremental system costs were cloaked in NDAs in a way with no known analogue anywhere else in the country. If the contract is sealed, no one can verify who's paying for the interconnection — which is the only number that determines whether your bill moves.
Every one of the seven is legal. None requires anyone to lie. They work because permitting authority in the U.S. is sliced by medium (air, water, land) and by jurisdiction (federal, state, county), while a gigawatt-scale data center is a single decision with effects that cross all of them.
The developer sees one project. The law sees eight unrelated filings. The gap between those two views is the product.
The federal layer is starting to notice — FERC's December 2025 PJM co-location order forced tariff changes precisely because co-located load was escaping the cost-allocation rules that apply to everyone else, on the principle that "costs must be allocated to those who cause them and benefit from them." State ratepayer advocates told FERC in July 2026 it still doesn't go far enough. But federal cost-allocation reform doesn't help you at a county hearing next month.
Put these in writing — to the developer, the agency, and your elected officials. A refusal to answer is itself a public record you can cite.
The Tucker County story will get read as a West Virginia story about one awkward developer. It isn't. It's a demonstration that a project can hold two contradictory identities at the same time — real enough for an air permit, conceptual enough to dodge disclosure — and that under current law, both can be true simultaneously.
Communities keep losing these fights not because they show up unprepared, but because they show up at the one venue that was never empowered to consider what they came to say. Map the venues first. Then decide where to spend your people.
Sources: Mountain State Spotlight, "Tucker County residents want to know what Fundamental Data is planning," July 23, 2026; WV HB 2014 (enrolled); Southern Environmental Law Center on xAI turbine permits; Wisconsin Watch, "At least four Wisconsin communities signed secrecy deals," Jan 2026; Public Citizen, "The Secret Data Center Buildout"; Star Tribune on Minnesota code names and shell companies; Utility Dive on FERC and PJM data center transmission costs; Illinois AG objections to ComEd data center contracts; MultiState 2026 state data center tracker.