In an unusually aggressive move, the Justice Department told a federal court in Mississippi that Elon Musk’s artificial intelligence company, xAI, has the right to run dozens of polluting gas-burning turbines in the state despite not having permits for them.
The Justice Department late on Monday said that the court should throw out a lawsuit against xAI that was brought by the NAACP claiming that the turbines violate the Clean Air Act. The suit threatens national security by “seeking to shut off the power supply for artificial-intelligence innovation that supports the Department of War’s military operations,” according to the memo, which was signed by Stanley Woodward Jr., associate attorney general and the No. 3 official in the department.
The memo also argued that the federal government should have unchallenged authority to stop environmental lawsuits brought by private groups or individuals.
“It’s remarkable for the United States to intervene on behalf of a polluter in a case like this,” said Laura Thoms, director of enforcement at Earthjustice, which represents the NAACP along with the Southern Environmental Law Center. “Ordinarily, they would intervene to enforce the law,” she said, referring to the Clean Air Act, which requires facilities like power plants to seek permits and install pollution-control technologies.
Ms. Thoms, who until last year was an assistant chief for environmental enforcement at the Justice Department, also said that to her knowledge the department hasn’t previously argued that it should have the power to reject citizens’ lawsuits on its own authority.
A representative of xAI didn’t immediately respond to a request for comment.
The NAACP sued xAI in April to challenge the company’s use of unpermitted gas turbines for data centers near the Tennessee-Mississippi border.
The lawsuit argues that the company was violating the Clean Air Act and is polluting Black neighborhoods near the facilities. The language of the Clean Air Act, the main law governing air pollution in the United States, says that individuals and groups can file what it calls “citizen suits” against companies or government agencies to compel enforcement of environmental laws. The suits have long been a mainstay for environmental groups.
In its memo, the Justice Department cited the president’s determination that expansion of energy infrastructure was a major priority in order to enhance “global A.I. dominance.” And it argued that the federal government has power to quash the NAACP’S “citizen suit” and that individual citizens and groups cannot pursue Clean Air Act enforcement over the federal government’s objections.
Ms. Thoms said that, under the Clean Air Act, there was no national security exemption for complying with the claims.
On Tuesday Mr. Woodward, the associate attorney general who signed the memo, said in a statement that the “ultimate responsibility for enforcing federal law belongs to the executive branch, not private interest groups.” He said the department was “committed to maintaining that constitutional order while protecting national security and promoting American energy and innovation.”
The NAACP’s lawsuit names xAI and its subsidiary MZX Tech as defendants and takes issue with their use of portable, natural-gas-powered turbines to help power Grok, xAI’s artificial intelligence product. The Mississippi Department of Environmental Quality had determined that the state did not require Clean Air Act permits for the turbines.
The NAACP alleges that xAI currently operates 57 gas turbines in Mississippi to power its Colossus 2 data center, located near the border of Tennessee, without pollution controls required by the Clean Air Act.
That makes the facility one of the country’s biggest single industrial sources of smog-forming nitrogen oxide, the plaintiffs allege, as well as significant source of other harmful air pollutants like particulate matter and formaldehyde, disproportionately affecting vulnerable groups like children, older adults and low-income or minority households.
The lawsuit seeks penalties of roughly $124,000 per day per violation, and an injunction ordering the company to stop operating the turbines. xAI has said the turbines are temporary, and therefore exempt from more stringent permitting requirements. xAI is now a part of SpaceX, Mr. Musk’s rocket venture, which recently began trading on the stock market, making Mr. Musk a trillionaire.
“At a time when the ultra-rich seem to be protected and supported by some of our government entities, it is important that polluting industries don’t get to benefit at the expense of the health of Black communities,” Abre’ Conner, NAACP’s director of environmental and climate justice, said on Tuesday. “Citizen suits are a bedrock insurance policy for communities to hold polluters accountable for decisions that cause them harm.”
On Tuesday, Thomas Jorling, who helped write the 1970 Clean Air Act when he was a lawyer advising Republican senators, said that the law’s provision on citizen lawsuits was intended to help prevent what he called “malfeasance” by government agencies.
“Among the motivations for forgoing to enforce are favoritism, political payoff, insufficient resources and the like,” said Mr. Jorling, who has been credited with making sure the citizen-suit provision was part of the law. “There are no other explanations for government not enforcing the law. Citizen suits are the line of defense.”
The D.O.J.’s intervention in the case on the side of xAI would seemingly pit the Trump administration against another federal agency, the Environmental Protection Agency, which had clarified earlier this year that even temporary turbines were subject to permitting and pollution controls.
The E.P.A. said Tuesday it does not comment on pending litigation.
The NAACP’s lawsuit comes amid a rising backlash against energy-intensive data centers in recent months, triggering lawsuits as well as 100 proposed moratoriums at the local, county, state and national levels.
Andrew Mergen, a professor at Harvard Law, said the Justice Department’s memo was “very aggressive” and rooted in a longstanding campaign in the conservative legal movement to curtail citizen suits on constitutional grounds. The NAACP’s lawsuit against xAI is in the Fifth Circuit, widely seen as the most conservative appeals court in the country. Because of that, the department “feels very assured that they have a certain home court advantage,” said Mr. Mergen, who left the Justice Department’s environment division in 2022 after a three-decade career there.
It was notable that the filing was largely signed by political appointees, including such a high-ranking official as Mr. Woodward, rather than career departmental attorneys, Mr. Mergen said. “In my 33 years at the Department of Justice, I don’t think I ever filed a pleading with the associate attorney general on it,” he said. He saw that as a sign that the department had become politicized.
Emily Tucker, vice president at the investment research firm Capstone, said the firm believed that a “conventional reading” of the Clean Air Act would push the court to rule in favor of the NAACP. But the Justice Department’s memo could create some challenges for the group to get all of the remedies it sought, she said.
For example, Ms. Tucker said, the national-security argument could be compelling to the judge, Debra M. Brown of the U.S. District Court for the District of Northern Mississippi. That could help carve out an exemption to pollution rules for data centers being used for defense functions.
The arguments about citizen suits will be more challenging for the department to win, she said. “However, given the nature of the questions that have been raised, we think it’s likely that this case will be appealed to the Fifth Circuit and potentially the Supreme Court,” she said.
