The Conversation is an independent and nonprofit source of news, analysis and commentary from academic experts.<\/p>\n
By MICHAEL HELBING Adjunct Professor of Law, Penn State<\/p>\n
Governors across the country are relying on their executive powers to address the increasing public backlash against data center proposals.<\/p>\n
In July 2026, New York Gov. Kathy Hochul placed an effective moratorium on data center permitting until the state\u2019s Department of Public Service creates a generic environmental impact statement regarding the impacts of data centers. Similarly, in August 2026, Texas Gov. Greg Abbott announced a moratorium on data centers until state agencies can audit data related to impacts on the electric grid.<\/p>\n
In Pennsylvania, Gov. Josh Shapiro signed executive order 2026-05 on Aug. 18, 2026, placing restrictions on the state\u2019s review of permits related to data centers.<\/p>\n
I am the executive director of Penn State\u2019s Center for Energy Law and Policy, and I have been tracking policy responses to data center proposals in Pennsylvania and across the country. I find it notable that one of the justifications the governor appears to cite in his order is a little-used but potentially powerful legal tool: the Environmental Rights Amendment to the Pennsylvania Constitution.<\/p>\n
What the executive order does<\/p>\n
The Environmental Rights Amendment<\/p>\n
Shapiro\u2019s executive order does not completely stop data center permitting activities. But it does add requirements that may slow their development and give local officials more influence over the process:<\/p>\n
\u2022 The order makes all data center projects ineligible for the PA Permit Fast Track Program, which streamlines permitting for certain high-impact projects.<\/p>\n
\u2022 It prohibits any agencies under the governor\u2019s oversight from entering into nondisclosure agreements in connection with a data center project.<\/p>\n
\u2022 It requires the Pennsylvania Department of Environmental Protection to create a public map that shows permitting information about all known data center projects in the state.<\/p>\n
\u2022 Perhaps most significantly, it prohibits officials from issuing state permits for data center projects until after the developer has demonstrated it has complied with local plans and received all required municipal approvals. This ordering of permitting has the potential to enhance local power over data center projects.<\/p>\n
The order also creates a two-tiered system for permitting review. One tier is for developers that agree to comply with the Governor\u2019s Responsible Infrastructure Development, or GRID, standards. The other is for developers that do not comply.<\/p>\n
Among other things, the GRID standards call for developers to secure all energy needed to power their facility, including a portion powered by clean energy; pay 100% of the costs of their project; and comply with environmental operating and reporting requirements.<\/p>\n
Developers that agree to comply with the GRID standards will have their state permit applications reviewed on a rolling basis when they are submitted and issued on a rolling basis after all local requirements are met.<\/p>\n
For projects that do not comply with the GRID standards, the state\u2019s Department of Environmental Protection will not even begin reviewing state permit applications until the developers have obtained all necessary local permits.<\/p>\n
Collectively, the policies in the executive order are likely to both slow down the permitting process for data centers and give local officials more leverage over data center projects. Municipal officials have significant authority over local land use decisions. Now that state permit review is contingent on local approvals, data center developers will have more incentive to work with local decision-makers to minimize delays.<\/p>\n
Beyond the scope of the order itself, I find it significant that the executive order cites \u201cPennsylvanians\u2019 constitutional rights\u201d as part of its justification.<\/p>\n
Although the order does not specify which constitutional rights it is referring to, it appears to be a reference to the Pennsylvania Constitution\u2019s Environmental Rights Amendment.<\/p>\n
The Environmental Rights Amendment is in Article 1 of the Pennsylvania Constitution, along with political rights such as the freedom of speech and freedom of religion. It guarantees the people\u2019s \u201cright to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment.\u201d<\/p>\n
Although it was added to the state Constitution in 1971, the impact of the Environmental Rights Amendment has been muted until recently. Earlier court decisions limited the legal power of the amendment. But recent opinions from the Pennsylvania Supreme Court have given it new life, raising legal questions about how the amendment will be interpreted in the future. Those cases clarified that it is not necessarily enough for the state to simply comply with environmental statutes. A law or state action that \u201cunreasonably impairs\u201d the right to clean air, pure water or other environmental values can be deemed unconstitutional.<\/p>\n
If the commonwealth cites the Environmental Rights Amendment in litigation defending the executive order on data centers, courts will have another opportunity to interpret the amendment\u2019s language \u2013 and therefore its power. Judges will be called upon to weigh how Pennsylvania\u2019s constitutional obligations to protect its citzens\u2019 rights to a clean environment are properly balanced against industry\u2019s procedural and property rights to develop land. Depending on how courts decide those cases, the commonwealth \u2013 and even citizens \u2013 may have a more robust weapon in their fight for \u201cclean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment\u201d going forward.<\/p>\n","protected":false},"excerpt":{"rendered":"The Conversation is an independent and nonprofit source of news, analysis and commentary from academic experts. By MICHAEL…\n","protected":false},"author":2,"featured_media":277397,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[6],"tags":[28,30,29],"class_list":["post-277396","post","type-post","status-publish","format-standard","has-post-thumbnail","category-pennsylvania","tag-pennsylvania","tag-pennsylvania-headlines","tag-pennsylvania-news"],"_links":{"self":[{"href":"https:\/\/www.newsbeep.com\/us-pa\/wp-json\/wp\/v2\/posts\/277396","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.newsbeep.com\/us-pa\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.newsbeep.com\/us-pa\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-pa\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-pa\/wp-json\/wp\/v2\/comments?post=277396"}],"version-history":[{"count":0,"href":"https:\/\/www.newsbeep.com\/us-pa\/wp-json\/wp\/v2\/posts\/277396\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-pa\/wp-json\/wp\/v2\/media\/277397"}],"wp:attachment":[{"href":"https:\/\/www.newsbeep.com\/us-pa\/wp-json\/wp\/v2\/media?parent=277396"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-pa\/wp-json\/wp\/v2\/categories?post=277396"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.newsbeep.com\/us-pa\/wp-json\/wp\/v2\/tags?post=277396"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}