Data Centers – Take Aways from Episode 1 of Our What’s Watt Series

I had the pleasure of hosting our inaugural kick off webinar entitled “What’s Watt – Major Trends in Data Centers and Digital Infrastructure” yesterday. We will be hosting a series of discussions during 2026 focusing on the incredible evolution and proliferation of data centers in the US and beyond, and the unique issues and opportunities that they are.

I was joined yesterday by two fabulous panelists: #Jeffrey Ginsberg, Managing Director at #DigitalBridge and #Robert Montejo, Partner, #Duane Morris who focuses his practice in the data center arena.

Our discussion focused around defining where primary markets and secondary markets in the US are located, what rents and vacancy rates currently exist, what the drivers of development have been and currently are, and what the outlook for 2026 is from our panelists’ perspective.

Primary and Secondary Markets – Historically, the primary market areas for data center development have been Northern California (3,500 MW), Phoenix (680 MW), Chicago (690 MW), Northern Virginia (3,450 MW), Atlanta (1,270 MW) and Dallas (860 MW). Secondary markets have developed in Los Angeles, Hillsboro, Oregon, Salt Lake City, Denver, Austin, Houston, Minneapolis, Boston and the New York/Northern NJ/Connecticut markets.

Rental Rates; Vacancy Rates – Currently, but expanding daily, the primary markets accounted for approximately 8,160 Mega Watts (MW) in 2025, up 17.6% from the second half of 2024. Vacancy rates in these primary markets are under 2% with pricing of $250-$500 per kilowatt of power provided. 1 Note, these are NOT really real estate prices, rather, pricing is based on the amount of power one is able to provide to the data center, with larger scale developments of over 10 MW getting rental premiums of over 15% above the rates noted above.

By way of example of the increased pace of development, Northern Virginia saw an increase of 80% of its capacity in 2025 with over 2,000 MW coming online in 2025, together with another 538 MW currently under construction with a 2026 delivery date. Construction is estimated at approximately 5,300 MW in the primary markets, a bit down from 2024 construction.

As one would expect, the data center electric load usage has tripled over the last ten years and this usage is estimated to triple again by 2028 according to the US Department of Energy Lawrence Berkeley National Labs.

Historically, the initial growth in datacenters from 2016 through 2021 was driven by the desire/need for cloud computing facilities that were a bit geographically driven with facilities being on the smaller side. Given the relatively recent emergence of Artificial Intelligence, the location and sizing of data center deals has shifted radically to much larger, bigger, more intensive buildings and projects, with more and more over 100 MW hyper-scalers becoming more the rule than the exception.

Key Concerns/Risk: When asked about key concerns, Jeff and Rob indicated that power availability/grid capacity to deliver necessary power to run their operations, capital (given the immense cost of building some of these buildings – e.g., a 1 Giga Watt development potentially costing over $18 Billion to design, build and open) and NIMBYism were the top 3 on their list, followed by water for coolant, city and county desire to accommodate the use and local utility capability to delivery transmission lines when they say they will, being the next tier of concerns. States have begun to respond to citizen concerns about datacenters creating increased water and electric costs and are beginning to consider direct taxation via feed in tariffs on the data center users, requiring users to create their own power on site or requiring them to feed excess power back into the grid. Jeff reminded the audience that having a signed lease with an off taker/user is table stakes for these transactions given the immense size of the overall deal and that often the owners form joint ventures to de-risk their piece of the transaction.

Utilities: We discussed that while #Small Modular Nuclear Reactors (SMRs) are getting a lot of press, for the most part, current development of data centers have not utilized this technology yet. Most data centers are relying on a natural gas-powered energy source which is matched with a solar or wind renewable source with battery storage enabling the facility to have a redundant source of power, some of which can be put back on the regional grid if needed.

Locational Support or NIMBY: Various states and municipalities are becoming more anti-data center in their approach to resource management, permits and consumer costs, and, as such, it behooves the developers to find a way to stay on top of these shifts in desires (e.g., construction and permanent jobs vs. potential drain on resources and cost increases to other consumers). Others, like the federal government who just announced a $50B transaction to provide data centers for the federal government continue to seek ways to expand their involvement in the data center arena.

If this topic is of interest to you, please look for future datacenter discussions in 2026 where we will be focusing attention on financing for data centers – who is lending, where and what are the constraints; Technology that is going into datacenters – switchgear, Indoor Air Quality sensors, cooling devices that are avoiding water usage, etc.; Conversion of existing corporate data centers into newer facilities providing more capabilities; Private Equity Players in the space and what they are doing and looking for by way of returns; Hyper Scalers – who are they and do they own, lease, do both and why.

If you have additional topics you would like to see us explore, feel free to drop me a note at bamolotsky@duanemorris.com and we would be happy to add it to our growing list of things folks are asking for information about.

Duane Morris has a robust industry facing Energy and Environmental Group focused on incentives, regulatory, permitting, financing and development of energy projects and data center projects internationally including renewables, solar, wind, geothermal and power purchase agreements. The data center team has been working in the space for over 9 years on millions of SF on various deals, financings, developments and incentive arrangements. If you have any questions or follow ups, please do not hesitate to contact Brad A. Molotsky, Robert Montejo, Veronica Law, Ben Warden, Brad Thompson, Phil Cha, Shelton Vaughan or the lawyer in the firm whom you normally deal with on other matters.

  1. Note as there are 1,000 kilo watts in a mega watt (MW), if the facility was 10 MW, this would equal 10,000 kilo watts x on the lower end – $250/kw = $2,500,000. Using some rough math, the 10 MW datacenter would be considered rather modest and contain approximately 4,000 racks in such a facility. ↩︎

Clean Energy Investment Tax Credit Final Regulations Issued by Treasury

Earlier this week, on December 4, 2024, the U.S. Treasury Department released final regulations for Section 48 – also known as the clean energy investment tax credit.

After much industry push back, of particular note is, that the proposed definition of what qualifies as applicable “energy property” was modified to include functional components of various systems in calculating what the total energy credit is worth.

The revised definition reflects what Treasury intended to be broad but functional descriptions of integral components for various renewable energy technologies eligible under Internal Revenue Code Section 48.

To avoid limiting future energy technologies, Treasury, in consultation with the U.S. Department of Energy, determined that “the best option is to adopt a function-oriented approach to describe the types of components that are considered energy property”.

Per Treasury, the ITC has fueled US clean energy development by providing a tax credit for investments in qualifying clean energy projects – generally 30% of the cost of the project.

The Inflation Reduction Act extended the ITC as well as the production tax credit (the “PTC”), until 2025, at which point the ITC and PTC will switch to a technology neutral approach with investment tax credits that will be available in full for projects beginning construction through at least 2033.

The final rules now allows project owners to include the costs of upgrading equipment in the basis, which is used to calculate the value of the Section 48 credit.

Additional clarity was provided for offshore wind equipment (allowing owners to claim the credit for power conditioning and transfer equipment and cables), geothermal heat pumps (allowing owners of underground coils to claim the ITC if they own at least one heat pumps used in connection with the coils), biogas (clarifies what property is qualified biogas property and what is integral part of the project), co-located energy storage (allows that claimed energy storage technology that is co-located with and shares power conditioning equipment with a qualified facility will also qualify) and hydrogen storage (allows that energy storage property does not need to store hydrogen that is solely used as energy to qualify).

The proposed rules, released November 2023, initially prohibited upgrading equipment to qualify. Moreover, initially, Treasury said in the proposed rules that the ownership of only geothermal components is not considered ownership of the entire unit of the energy property. The final rules modified both of these provisions to allow for upgraded equipment and component ownership to qualify.

The regulations also revised the definition of “energy project” so that multiple properties with the same owner can claim the credit. Such properties must meet at least 4 of the 7 factors of an energy project listed in the final regulations, such as the facilities share a common substation or are financed by the same loan agreement.

Energy storage equipment located in the same area as power conditioning equipment for a facility that claims a related renewable energy production tax credit is also eligible for the credit under the final regulations.

The final regulations implemented start with a base credit of 6% of a renewable energy development’s basis or qualified investment. The value of the credit can increase to 30% for projects that meet certain standards, such as the prevailing wages and apprenticeship requirements. The law also made newer renewable energy technologies, such as electrochromic glass, energy storage, microgrid controllers and biogas properties, eligible for the incentive.

The 2022 law created a new clean electricity ITC that has a much longer expiration date under Section 48E. This new provision will apply to any energy property designed to emit zero greenhouse gas emissions, including nuclear facilities. Section 48E, along with the related clean electricity production tax credit under Section 45Y will take effect in January, 2025 but the effectiveness of those incentives could be scaled back as President-elect Donald Trump and Congress seek revenue sources to offset the renewal of expiring provisions under the 2017 Tax Cuts and Jobs Act.

Duane Morris has a robust industry facing Energy Group focused on incentives, regulatory, permitting, financing and development of energy projects internationally including renewables, solar, wind, geothermal and power purchase agreements and P-3 procurements. If you have any questions or follow ups, please do not hesitate to contact Brad A. Molotsky, Brad Thompson, Phil Cha, Shelton Vaughan or the lawyer in the firm whom you normally deal with on other matters.

Enforcement of New Solar Panel Tariffs Delayed in Move to Boost Industry

On June 6, 2022, President Joe Biden signed an order that will exempt Southeast Asian nations from any new tariffs on solar panels for two years in order to alleviate concerns about the crippling effects of an ongoing Commerce Department investigation into whether manufacturers of solar panel components in Southeast Asia are being used to circumvent U.S. tariffs on Chinese solar companies. Biden will also invoke the Defense Protection Act to drive U.S. manufacturing of solar panels and other clean energy technologies in the future, with the support of loans and grants. If production ramps up as expected, the administration expects domestic solar manufacturing to triple by 2024.

To read the full text of this Alert by Duane Morris attorneys Brad Thompson and Patrick Dinnin, please click here.

Bright Future for Solar Developers in New Jersey? Only If They Act Fast

The New Jersey Board of Public Utilities established a Successor Solar Incentive Program that provides new, reduced incentives to developers of solar generation projects compared to past incentive programs. The new program limits the number of solar incentives available each year to developers of projects smaller than 5 megawatts, so interested developers should move quickly. In addition to the annual limits, the value of the available incentives will be reduced over time, giving an advantage to early movers.

To read the full text of this Alert by Duane Morris attorneys Phyllis Kessler and Patrick Dinnin, please visit the Firm website.

New Jersey BPU awards 165 MW of Community Solar in Yr 2 of Pilot Program

On October 28, 2021, the New Jersey Board of Public Utilities (“BPU”) approved 105 applications under New Jersey’s Community Solar Energy Pilot Program.  The applications and awards will create 165 megawatts of clean energy – enough energy to power approximately 33,000 homes – available to low-to-moderate income and historically underserved communities. Year 2 of the pilot program represented a significant increase in the amount of power generated (i.e., from 78 MW to 165 MW) and the number of applications seeking to install community solar.

To read the full text of this post by Duane Morris partner Brad Molotsky, please visit the Duane Morris Project Development/Infrastructure/P3 Blog.

© 2009- Duane Morris LLP. Duane Morris is a registered service mark of Duane Morris LLP.

The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

Proudly powered by WordPress