DOJ seeks to stop Elon Musk’s data center pollution lawsuit

In an unusually aggressive move, the Justice Department has told a federal court in Mississippi that Elon Musk’s artificial intelligence company, xAI, has the right to operate dozens of polluting gas-burning turbines in the state, even though it does not have a permit for them.

The Justice Department said late Monday that a court should throw out a lawsuit against xAI filed by the NAACP alleging the turbines violate the Clean Air Act. The lawsuit threatens national security by “seeking to shut down the power supply for artificial intelligence innovation that supports the War Department’s military operations,” according to a memo signed by Stanley Woodward Jr., the deputy attorney general and the department’s No. 3 official.

The memorandum also argued that the federal government should have the unquestioned authority to stop environmental lawsuits brought by private groups or individuals.

“It’s remarkable that the United States would intervene on behalf of a polluter in a case like this,” said Laura Thoms, director of advocacy at Earthjustice, which represents the NAACP along with the Southern Environmental Law Center. “Usually they would step in to enforce the law,” she said, referring to the Clean Air Act, which requires facilities such as power plants to seek permits and install pollution-control technologies.

Ms. Thoms, who was deputy chief of environmental enforcement at the Justice Department until last year, also said that to her knowledge, the department had not previously argued that it should have the power to dismiss citizen lawsuits on its own merits.

A representative for xAI did not immediately respond to a request for comment.

The NAACP sued xAI in April to challenge its use of unpermitted gas turbines for data centers near the Tennessee-Mississippi border.

The lawsuit alleges the company violated the Clean Air Act and is polluting black neighborhoods near the facility. 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 “civil lawsuits” against companies or government agencies to force enforcement of environmental laws. Suits have long been a mainstay of environmental groups.

In its statement, the Justice Department cited the president’s decision that expanding energy infrastructure is a top priority for strengthening “global AI dominance.” And he argued that the federal government had the power to overturn the NAACP’s “civil lawsuit” and that individual citizens and groups could not enforce the Clean Air Act over the federal government’s objections.

Ms. Thoms said there is no national security exemption under the Clean Air Act to comply with the claims.

On Tuesday, Mr. Woodward, the associate attorney general who signed the memo, said in a statement that “ultimate responsibility for enforcing federal law rests with the executive branch, not private interest groups.” He said the department is “committed to maintaining this constitutional order while protecting national security and promoting American energy and innovation.”

The NAACP lawsuit names xAI and its subsidiary MZX Tech as defendants and challenges their use of portable natural gas-powered turbines that help power Grok, xAI’s artificial intelligence product. The Mississippi Department of Environmental Quality has ruled that the state does not require a Clean Air Act permit for the turbines.

The NAACP claims xAI currently operates 57 gas turbines in Mississippi to power its Colossus 2 data center, located near the Tennessee border, without pollution controls required by the Clean Air Act.

That makes the facility one of the largest single industrial sources of smog-forming nitrogen oxide in the country, prosecutors say, as well as a significant source of other harmful air pollutants such as particulate matter and formaldehyde, disproportionately affecting vulnerable groups such as children, older adults and low-income or minority households.

The lawsuit seeks fines of roughly $124,000 per day for the violations and an injunction ordering the company to stop operating the turbines. xAI said the turbines are temporary and therefore exempt from stricter permitting requirements. xAI is now part of SpaceX, Mr. Musk’s rocket venture, which recently went public, making Mr. Musk a billionaire.

“At a time when the ultra-wealthy appear to be protected and supported by some of our government entities, it is important that polluting industries do not benefit at the expense of the health of black communities,” Abre’ Conner, NAACP director of environmental and climate justice, said Tuesday. “Civil lawsuits are an essential safeguard for communities to hold polluters accountable for decisions that have caused them harm.”

On Tuesday, Thomas Jorling, who helped write the 1970 Clean Air Act when he was a lawyer advising Republican senators, said the law’s civil litigation provision is meant to help prevent what he called “malpractice” by government agencies.

“Motives for waivers include favoritism, political payoffs, lack of resources and the like,” said Mr. Jorling, who is credited with getting the civil action provision into the law. “There is no other explanation for why the government is not enforcing the law. Civil suits are a line of defense.”

The Justice Department’s intervention in the xAI case would seemingly pit the Trump administration against another federal agency, the Environmental Protection Agency, which clarified earlier this year that even temporary turbines are subject to permitting and pollution controls.

The EPA said Tuesday it does not comment on pending litigation.

The NAACP’s lawsuit comes amid growing opposition to energy-intensive data centers in recent months, which has sparked lawsuits as well as 100 proposed moratoriums at the local, county, state and national levels.

Andrew Mergen, a Harvard law professor, said the Justice Department memo is “very aggressive” and rooted in the conservative legal movement’s long-standing campaign to limit civil lawsuits on constitutional grounds. The NAACP’s lawsuit against xAI is in the Fifth Circuit, which is widely considered the most conservative appeals court in the country. Because of that, the department “feels very confident that they have some home court advantage,” said Mr. Mergen, who retired from the Justice Department’s environmental division in 2022 after a three-year career.

It was notable that the file was largely signed off by political figures, including such a high-ranking official as Mr Woodward, rather than career lawyers, Mr Mergen said. “I don’t think I’ve ever filed a case with a deputy attorney general in 33 years at the Justice Department,” he said. He saw it as a sign that the department had become politicized.

Emily Tucker, a vice president at investment research firm Capstone, said the firm believes a “conventional reading” of the Clean Air Act would prompt the court to rule in favor of the NAACP. But the Justice Department memo could create some problems for the group to get all the remedies it sought, she said.

For example, Ms. Tucker said the national security argument could be persuasive to Judge Debra M. Brown of the U.S. District Court for the Northern District of Mississippi. This could help get an exemption from pollution rules for data centers used for defense functions.

According to her, arguments about civil lawsuits will be more difficult for the department. “However, given the nature of the issues that have been raised, we think it is likely that this case will be appealed to the Fifth Circuit and potentially to the Supreme Court,” she said.