Did the AG opine on what local-government powers remain over digital asset mining under Arkansas's Data Centers Act?

Plain-English summary

Senator Bryan B. King and Representative Ron McNair asked six questions about the Arkansas Data Centers Act of 2023. They concerned the statutory definition of “ordinance,” local safety and operations rules, whether the Act expands local authority, zoning of portable mining containers, buffers near schools and daycares, and the meaning of an electric utility's “transmission network.”

The AG declined every question because related litigation was pending. Footnote 2 identifies Jones Digital LLC v. Ark. Cty., a federal case filed November 1, 2023. The AG said the outcome could directly affect the issues raised, and cited his office's longstanding policy of declining to opine on matters before courts.

What this means for you

Local governments and mining operators

This opinion supplies no answer about the validity of a zoning change, a school or daycare buffer, an operations rule, or the scope of a utility's transmission network. It records the questions and the AG's reason for declining them.

People following the litigation

The cited case explains the AG's declination. The opinion does not describe the case's claims, predict an outcome, or report a later disposition.

Common questions

Did the AG decide whether local governments can require buffers near schools? No. That was one of the six questions on which he declined to opine.

Did the AG define “transmission network” for digital asset miners? No. The sixth question asked whether it includes a distribution network, but the opinion gives no answer.

Why did the AG decline the questions?
He said pending litigation could directly affect the issues and cited his office's policy against opining on matters before courts.

Background and statutory framework

The request named A.C.A. §§ 14-1-603(10) and 14-1-604 and the Data Centers Act of 2023. Footnote 1 corrects the Act's codification to A.C.A. § 14-1-601 et seq. The AG did not interpret these provisions in response to the six questions. Footnotes 2–3 identify the pending case and earlier opinions stating the office's declination policy.

Citations

• A.C.A. § 14-1-601 et seq.; § 14-1-603(10); § 14-1-604
• Jones Digital LLC v. Ark. Cty., Ark., et al., No. 2:2023cv00220 (E.D. Ark.), filed November 1, 2023
• Ark. Att’y Gen. Ops. 2023-028, 2016-027, 2010-047

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2023-068

November 16, 2023

The Honorable Bryan B. King
State Senator
871 CR 814
Green Forest, Arkansas 72638

The Honorable Ron McNair
State Representative
10819 Daffodil Court
Harrison, Arkansas 72601

Dear Senator King and Representative McNair:

You have requested my opinion regarding the Arkansas Data Centers Act of 2023 (“the Act”) 1 and digital asset mining. You ask the following questions:

Question 1: Is the definition of ordinance as listed in A.C.A. § 14-1-603(10) required for the intended application of the Act?

Question 2: With the existing definition of ordinance as set out in A.C.A. § 14-1-603(10), is a digital asset mining operator that is not home based required to follow local law and regulation regarding safety and operation under A.C.A. § 14-1-604?

Question 3: Is there any expansion or grant of authority to local governments in the Act?

Question 4: After the Act goes into effect, can a local government update their zoning code to address the transient nature of a data center that utilizes modular/portable containers to house mining rigs? Or would such a regulation be considered discriminatory toward a digital asset mining operation because traditional data centers do not typically use modular/portable containers?

Question 5: Are local governments able to update zoning codes to include buffers for sensitive areas such as schools and daycares? Is that considered discriminatory? 1 A.C.A. § 14-1-601 et seq. Although you referred to these provisions as A.C.A. § 14-1-501 et seq., they were later codified as A.C.A. § 14-1-601 et seq. Your questions have been revised to reflect this change. The Honorable Bryan B. King State Senator The Honorable Ron McNair State Representative Opinion No. 2023-068 Page 2

Question 6: A.C.A. § 14-1-604 states, “A digital asset miner shall operate in a manner that causes no stress on a public electric utility’s generation capabilities or transmission network.” Does the term transmission network include a public electric utility’s distribution network (from substations to end users)?

RESPONSE

I must respectfully decline to opine on your questions because of pending litigation, 2 the outcome of which could directly affect the issues you raised. It is the long-standing policy of the Office of the Attorney General, as a member of the executive branch, to decline to opine on matters that are pending before the courts for resolution. 3

I regret that I cannot be of assistance in this matter. Please do not hesitate to contact me if I may be of future assistance in some other respect.

Assistant Attorney General Jodie Keener prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General

2
See Jones Digital LLC v. Ark. Cty., Ark., et al., No. 2:2023cv00220 (E.D. Ark.), filed November 1, 2023.
3
See Ark. Att’y Gen. Ops. 2023-028, 2016-027, 2010-047 (stating that Office of Attorney General does not issue opinions related to pending litigation).