Socialists, led by Sen. Bernie Sanders (I-VT) and Rep. Alexandria Ocasio-Cortez (D-NY), want to halt data center construction nationwide. But a three-year-old Supreme Court decision narrowing the Environmental Protection Agency’s jurisdiction has made it harder for activists to block construction projects, helping clear the way for a data center building boom.
Passed by Congress in 1972, the Clean Water Act gives the EPA authority to regulate the discharge of “pollutants” into the “waters of the United States,” including not just “chemical wastes” but also “rock,” “sand,” and “dirt.” This means even a simple single-family home can trigger a costly federal permitting process if regulators determine that moving dirt, rocks, or fill material on a small parcel of land could affect the “waters of the United States.”
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From the beginning, there was much controversy surrounding what qualified as “waters of the United States,” with Democratic administrations taking an expansive view that granted the EPA authority over every swimming pool, puddle, and ditch in the country while Republican administrations took a much narrower view that included traditional navigable waters and their adjacent wetlands, but not every patch of land that occasionally became damp.
In 2023, the Supreme Court adopted the narrower view in Sackett v. EPA, ruling that an Idaho couple did not need a federal permit to build a home on a residential lot near Priest Lake simply because federal regulators said its wetlands were part of a broader wetland system with an indirect connection to navigable water.
The beneficial effect is now being felt. According to a new report, dozens of data center projects in states such as Texas, Utah, and West Virginia are moving forward without first being forced through the slow and expensive federal Clean Water Act permitting process. Before Sackett, developers often had to spend months merely determining whether a ditch, drainage feature, or patch of wet ground fell under federal jurisdiction.
Even that threshold question could “take an incredibly long time and then the determination of actually getting the permit is time-consuming as well,” compliance lawyer Wayne D’Angelo told Politico. But after the Supreme Court’s ruling, he said, “all that can likely be avoided by a number of projects just because of where they’re situated now outside of federal jurisdiction.” In other words, the Court did more than clarify a legal definition. It removed one of many regulatory weapons activists used to stop America building.
Data centers remain subject to state zoning laws, water-use rules, stormwater regulations, local permitting, nuisance claims, and, where applicable, the Clean Air Act. The only concrete harm identified in the report was flooding from an unfinished construction site that affected five homes in one neighborhood. Even then, state liability laws did what they are supposed to do: The data center companies paid for the damage.
MAMDANI’S SOCIALIST BUDGETING LIES
The United States did not become the world’s leading power by rationing energy or outlawing the next generation of infrastructure. It rose by building canals, railroads, factories, power plants, highways, pipelines, fiber-optic networks, and every other system needed to meet the demands of a growing nation. Data centers are the latest chapter in that story. They will require more electricity, more land, and more construction, but that is not an argument against them. It is an argument for building the energy infrastructure needed to support them.
Even after Sackett, Democratic states remain free to choose moratoriums, permitting delays, energy scarcity, and decline. But thanks to the Supreme Court, Republican states now have more room to choose a different path: faster construction, cheaper power, technological leadership, and economic growth. The future will be built somewhere, and thanks to Sackett, it is more likely to be built in states that still want one.
