Pennsylvania Barred Its Own Agencies From Signing Data Center Nondisclosure Agreements

Governor Josh Shapiro signed Executive Order 2026-05 on August 18, 2026. Paragraph 2(a) runs to one sentence: for all agencies under the Governor's jurisdiction, the use of non-disclosure agreements in connection with a data center project is impermissible. The order took effect immediately, and it directs the Department of Environmental Protection to publish a public map carrying current permitting information on every proposed data center project known to DEP or to the Department of Revenue.

The recitals put figures on the distance between what has been announced in Pennsylvania and what has been filed. The order records reports of over 100 data center facilities proposed in the commonwealth, permit applications at DEP related to 20 proposed facilities, and 14 existing or in-development locations holding an active certificate of exemption from the Department of Revenue under the Computer Data Center Equipment Program authorized by Article XXIX-D of the Tax Reform Code of 1971. Most of the proposals, the order states, are speculative, with no identified end user.

The instrument is a queue, not a moratorium. Pennsylvania has made two things a developer had been able to assume, a place in line at DEP and a sales and use tax exemption certificate, conditional on executing a consent order and on securing the municipality's approval first. The state clock now starts after the local vote.

The threshold is peak demand over 25 MW. DEP is to write a template Consent Order and Agreement carrying the terms of the Governor's Responsible Infrastructure Development requirements, announced February 3, 2026, with standards released May 27, 2026 across four areas: energy affordability, transparency and community engagement, workforce and economic development, and environmental protection. An applicant that files a notice of intent, meets DEP to walk through the permits it will seek and when it will obtain local approvals, and then executes a project-specific consent order, gets review and issuance on a rolling basis, with the GRID terms written into the permits as conditions to the extent the law allows. An applicant that executes nothing gets no review at all until it documents consistency with the local comprehensive plan, every municipal approval, and any water withdrawal or wastewater discharge authorization the project needs, and then gets no permit until DEP has received and reviewed the entire set.

Both routes lose the accelerators. Data center projects are removed from the PA Permit Fast Track Program created by Executive Order 2024-04 and are no longer eligible for it. An applicant without a consent order is excluded from the PAyback program under Executive Order 2023-07 and from the Permit Decision Guarantee under Executive Order 2012-11. An applicant with one keeps both, but the processing clock does not begin until the local documentation arrives, which moves the schedule risk in a Pennsylvania pitch from Harrisburg to the township building.

The tax lever sits with Revenue. Under Section 2938-D of the Tax Reform Code, the department is to prescribe the forms and procedures and update the Computer Data Center Equipment Exemption Program Guidelines so that applicants for the sales and use tax exemption on or after August 18, 2026 comply with the GRID requirements. Once a developer executes a consent order, DEP notifies both the Department of Revenue and the local jurisdictions the project sits in.

The cost case is in the recitals and it is sourced. PJM Interconnection's 2025 Load Forecast projected 74 GW of summer peak load growth on the PJM regional grid through 2045, driven primarily by data center development. Across PJM's last four base residual capacity auctions, the PJM Independent Market Monitor attributed $29.4 billion in capacity charges to ratepayers to data centers, which the order puts at 46% of total auction costs. The order also records that the Ratepayer Protection Pledge signed by seven of the largest artificial intelligence companies, in which they commit to building, bringing or buying new power supply and to paying for the infrastructure upgrades that serve them, is non-binding. Executive Order 2026-05 is an attempt to attach a version of that pledge to a permit.

The electricity provisions run through the Governor's Special Counsel for Energy Affordability, who is directed to press the Pennsylvania Public Utility Commission for rules putting data centers first in line for curtailment during pre-emergency interim resource adequacy service and emergency events, unless the customer has secured incremental capacity for the whole of its demand, and barring utilities from classifying a data center as critical load exempt from curtailment. On cost allocation, the Special Counsel is to seek tariffs that charge data center customers the PJM reliability backstop auction costs under whatever procedures the Federal Energy Regulatory Commission approves in docket ER26-3380-000, and that stop utilities recovering those costs from other customers if a data center becomes insolvent.

The strongest objection is that almost none of this binds. The order says it is to be implemented consistent with and to the extent permitted by applicable law, and that it creates no right or benefit enforceable at law or in equity by any party. The Public Utility Commission is independent, and the Special Counsel can advocate before it and nothing more. An executive order lasts as long as the governor who signed it. All of that is right, and it narrows the claim to the two levers executive agencies administer directly: position in the DEP queue and the Revenue exemption certificate. Those are the two a developer feels inside a quarter. The claim would be wrong if DEP's template consent order lands carrying no term a developer would not have signed anyway, in which case the order is a disclosure rule with a queue attached rather than a change in what gets built.

The order sets no date for the map. The one hard deadline it gives the industry is July 1, 2027, when data centers already operating in Pennsylvania must file the first annual energy and water consumption report required by Section 1813-B of the Fiscal Code, naming the parent company, the monthly energy draw and its sources, the estimated average hourly energy use at peak load in megawatt-hours, and the water source together with whether the water went to cooling.