A sign in a Tucker County storefront.
CHARLESTON — West Virginia’s Intermediate Court of Appeals has dismissed two appeals regarding a disputed air-quality permit for a proposed Tucker County data center and power project.
In separate orders, the court held it does not have jurisdiction under state environmental review statutes to decide challenges brought by local and environmental groups. One order also found that an appeal involving a draft version of the permit was moot because the state had since issued a final permit that was the subject of a separate appeal.
The cases concern Fundamental Data’s proposed Ridgeline project near Thomas and Davis. The company obtained an air permit in 2025 for a natural-gas-fired power facility intended to support a planned data center complex. Project opponents have criticized the state’s handling of permit materials that were redacted as trade secrets or confidential business information.
In one case, Tucker United, the West Virginia Highlands Conservancy and the Sierra Club appealed a February 5 order of the West Virginia Air Quality Board that upheld the permit. Fundamental Data intervened in that matter.
The ICA said the dispute falls within an exception to the general law directing post-June 2022 administrative appeals to the ICA. Under the applicable provision, a challenge to an order denying, approving or modifying an air permit must be filed in the state Supreme Court within 30 days unless all parties agree to proceed in Kanawha Circuit Court.
The parties did not agree to proceed in circuit court, the order said.
“Accordingly, this matter is dismissed as improvidently docketed,” the court wrote.
The court noted its dismissal resulted from a jurisdictional dispute, not a failure by the petitioners to act promptly. It said it would find good cause to permit an out-of-time notice of appeal from the underlying Air Quality Board decision, although it said it could not order the state Supreme Court to accept such an appeal.
The second case brought by Tucker United, Friends of Blackwater and the West Virginia Highlands Conservancy challenged the Air Quality Board’s handling of a draft permit and claims that some of Fundamental Data’s materials were protected from disclosure as confidential business information.
The ICA found it lacked jurisdiction over that matter as well. Unlike the final permit appeal, the court said the statutory exception directs such a challenge to the circuit court in the county where the alleged air pollution originated or to Kanawha Circuit Court if all parties agree. Again, the parties did not consent to a Kanawha County proceeding, according to the order.
The court also concluded the appeal was moot. The petitioners sought to vacate the Air Quality Board’s order on the draft permit and obtain additional evidentiary proceedings, but the final permit had already been issued and appealed in the other case.
“Even if we were to grant the relief petitioners seek, it would essentially be an advisory opinion as there would be nothing left to do in regard to the draft permit,” the court wrote.
The court said questions about whether information was properly treated as trade secrets or confidential business information, along with the merits of the permit approval, had been preserved for review in the final-permit appeal.
Both cases were delayed after Chief ICA Judge Daniel W. Greear and Judge Charles O. Lorensen sought voluntary recusals. The Supreme Court granted the recusals in June and temporarily assigned Circuit Court judges Shawn D. Nines and Gregory L. Howard Jr. to hear the matters.
The recusals followed concerns raised by project opponents about family and professional ties involving the judges and lawyers representing Fundamental Data. Lorensen’s son, William Lorensen, is among the Bowles Rice attorneys representing the company, while Greear cited several relationships and circumstances involving House Speaker Roger Hanshaw, a Bowles Rice partner and counsel for Fundamental Data.
Each side will bear its own costs, the Intermediate Court of Appeals ruled.
West Virginia Intermediate Court of Appeals case numbers 26-ICA-92 (Tucker United, the West Virginia Highlands Conservancy and the Sierra Club) and 25-ICA-391 (Tucker United, Friends of Blackwater and the West Virginia Highlands Conservancy)
