A federal judge in Mississippi ruled on Monday, Oct. 19, that the U.S. government cannot, on its own, end the NAACP's lawsuit against Elon Musk's AI company xAI. The NAACP and its Mississippi State Conference sued in April. They say xAI and a subsidiary, MZX Tech, built and run a power plant of gas-fired turbines in Southaven, Mississippi, without a permit, which would break the Clean Air Act, the main U.S. law on air pollution, and Mississippi's rules under it. The groups say the plant powers xAI's Colossus 2 data center nearby in Memphis.
The case is a citizen suit. The Clean Air Act lets any person bring a lawsuit on their own behalf to enforce the law. U.S. District Judge Debra M. Brown wrote that Congress meant this to let people sue even when federal and state governments decline to enforce the law. In June, the Justice Department asked to join the case and dismiss it, and later said it was acting for the Environmental Protection Agency, or EPA. It told the court it had decided that nothing the suit asks for is consistent with federal policy and the public interest.
The judge let the government join, since the law gives the EPA that right, but ruled that neither the Clean Air Act nor the court's rules let the government dismiss the case on its own once it has joined. The judge wrote that the law names only one situation in which the government can block such a suit: when it, or the state, has already brought its own court case to make the company comply and is pursuing it diligently. The judge noted that the EPA has taken no action to enforce the law against xAI, and the government has said it does not intend to bring its own case.
She also rejected the government's argument that, because the fines would be paid to the U.S. Treasury, the Constitution leaves seeking them to the president's branch. People who sue on their own behalf are not acting for the government, she ruled. She called the national security concerns the government raised irrelevant to whether it could end the case.
The NAACP asks the court to bar the plant from running except as the Clean Air Act allows, to require the best available pollution controls, and to impose fines of up to $124,426 per day for each violation. In June the groups also asked the court to stop the plant until xAI gets the permits and installs the pollution controls the law requires. The groups say the plant can release more than 5,000 tons a year of nitrogen oxides, gases that help form smog. "The court made clear today that the law applies to everyone, including the federal government," said Abre' Conner, the NAACP's director of environmental and climate justice.
The ruling does not decide whether xAI broke the law. xAI's own request to dismiss the case is still pending and will be decided separately. In September, before the judge had ruled, the government appealed to a federal appeals court, the Fifth Circuit. That court turned down its request to pause the case, noting the judge had not fully decided the issue, and she called the appeal premature. If the government wants to take part in the case, it has until Oct. 23 to file a formal statement of the claim or defense it brings. The EPA declined to comment and xAI did not immediately respond, according to a news report.