The Data Center Bypass Has Left Zoning Behind

A county commissioner in Montana has been explaining, in plain words, why his county is suing to keep a data center question off the ballot. Mark Morse of Yellowstone County wants a judge to block a citizens' initiative that would require voter approval before data centers can be built. The authority he cites is not a zoning statute or a state land-use law. It is a Supreme Court ruling about federal environmental review.

We’re basically asking, in light of the recent Supreme Court ruling, is this an initiative that Yellowstone County can pursue? — Mark Morse

The ruling is Seven County Infrastructure Coalition v. Eagle County, decided in May 2025, which narrowed the National Environmental Policy Act so that agencies need not study effects beyond their own jurisdiction ^[1]. Justice Kavanaugh's opinion described the law in unsparing terms.

NEPA has transformed from a modest procedural requirement into a blunt and haphazard tool employed by project opponents (who may not always be entirely motivated by concern for the environment) to try to stop or at least slow down new infrastructure and construction projects. — Brett Kavanaugh sexual assault allegations

In Yellowstone County, that ruling is being used to stop citizens from voting on what gets built in their own county ^[2]. This is the first thing to understand about the buildout's newest phase: the end-run that began on military bases is no longer only about where to build. It is reaching into the law itself. The military-base route solved the question of where — a data center on an Army base sits outside municipal zoning. What is new is that the same logic is now showing up in three other branches of government, each in a different domain. First, the environment. In July the EPA ruled that power plants serving only data centers — not connected to the public grid — are exempt from the Clean Air Act's acid rain program ^[3]. The agency's Aaron Szabo framed it as a matter of definition.

The EPA believes that, considering the plain text of these definitions, the Acid Rain Program does not apply to power generation facilities that are not connected in any way to the larger electricity grid. — Aaron Szabo

An "islanded" generator, in other words, falls outside the air rules that would otherwise apply to a plant of its size. The exemption matters because the civilian track keeps running into exactly this problem: the NAACP has threatened to sue xAI over 27 unpermitted gas turbines at its Mississippi facility ^[4]. On a base, with islanded power, that exposure disappears. Second, the legitimacy of saying no. Rep. Mark McCormick, who proposed putting data centers on Georgia's military bases, has suggested that some of the opposition may not be local at all.

I think that China or somebody who doesn't want us to compete with them is funding it because this is something we do need as Americans. — Mark McCormick

The suggestion — that China may be funding protests against data centers — casts civic dissent as a foreign operation ^[5]. It is a different kind of move than the others: not a rule change but a way of discounting the people who show up to object. Three branches, three domains, all landing within weeks of each other this summer. None of them says "no data centers." Each of them narrows the space where a community can say no. The architecture has two visible fault lines. The first is that the consent wall does not disappear on federal land — it migrates. Boulder City is appealing the Bureau of Land Management's approval of a data center on federal land to the Interior Board of Land Appeals, citing a lack of public consultation and the loss of $2.3 million in annual lease revenue ^[6]. That is BLM land, not a military base, and a base carries extra armor — classification, restricted access, a direct national-security claim. But the appeal shows that moving a project onto federal land does not end the fight; it moves it to a different courtroom. The second fault line is that "national security" is not a word courts rubber-stamp. In August a federal judge issued a preliminary injunction blocking the Pentagon's supply-chain risk designation of Anthropic, after the company refused to let its Claude model be used for autonomous weapons and mass domestic surveillance ^[7]. The Pentagon did not retreat — it has been routing work to smaller, more compliant startups ^[8]. But the ruling stands as a limit: a judge can halt a national-security designation. That matters because the military-base data center track itself has not yet been tested in court. Every legal challenge to data center siting since July — San Jose, Trenton, Yellowstone County, Independence, Palm Beach County — has targeted the civilian track ^{[9][10][2][11][12]}. No one has yet sued over a data center on an Army base. The pattern is real, and it is spreading. But the architecture has not been stress-tested, and the Anthropic ruling is the closest preview of what happens when it is.