The following is the opinion and analysis of the writer:
Pima County spent months deciding whether to approve a data center campus on 290 acres: 10 buildings, $3.5 billion dollars, a single new customer for Tucson Electric Power larger than any the utility had ever taken on at once.
The county could not say who the customer was. It had signed a nondisclosure agreement.
Consider the scale. TEP's all-time record demand — every home, hospital, school and business pulling at once on a 110-degree afternoon — was 2,502 megawatts. Amazon asked for as much as 286 megawatts, around the clock: better than a tenth of everything this city has ever drawn at once, from one customer. And unlike an August afternoon, it does not go away at sundown.
The customer turned out to be Amazon Web Services — learned, as such things usually are, after the consequential decisions were made. Then the city declined to supply cooling water, Amazon withdrew, and the ground is being cleared anyway for tenants whose names the public has not been told.
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That is the part worth sitting with. The confidentiality outlived the customer it was protecting.
None of this is peculiar to Pima County. Public-records requests across Virginia found nondisclosure agreements in 25 of 31 localities with data centers. The practice is the norm, not the exception.
What lands on the rest of us is not hypothetical. Electricity bills are up roughly 40% in five years, and investor-owned utilities have proposed about $1.4 trillion in capital spending through 2030. How much the developers will pay, and how much will arrive on everyone else's bill, is not settled.
The secrecy itself is not illegitimate. Developers have always used confidentiality to assemble land; if you need a thousand acres from 20 owners, you do not announce the buyer first. That is ordinary business. It changes character when the project needs public infrastructure: the megawatts from a regulated utility, the water from a desert city, the transmission to be built, the share of the cost that may land on everyone's bill. When those questions become consequential to a whole county, "confidential business information" stops being a sufficient answer.
Someone in this arrangement signs nothing at all. The seller takes a price and signs the papers. The neighbor signs nothing — no agreement, no check — and gets the construction traffic, the lights, the changed drainage and a substation built for a single customer. The law offers a nuisance claim if the interference proves substantial and unreasonable, and very little else. What it will not weigh is that the neighbor was never asked.
A century ago, men crossed Texas and Oklahoma buying oil leases before the farmer knew what was under his land. They were called lease hounds. Pima County, deliberating in public over $3.5 billion and a tenth of its utility's peak, stood where that farmer stood: somebody knew something the decision-maker was not allowed to know.
There will be another one of these, here and in every county with a transmission corridor. The question for the next one is not whether to build it. It is whether a county can approve a load better than a tenth of its utility's record peak without being permitted to say out loud who is asking and who pays.
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Winton D. Woods is Professor of Law Emeritus at the University of Arizona, where he taught conflict of laws and federal jurisdiction. He lives in Tucson.
