Dive Brief:
- The Department of Justice indicated Wednesday that it may intervene in a lawsuit filed by the NAACP against Elon Musk’s xAI and MZX Tech, its energy infrastructure and real estate subsidiary, alleging the companies are illegally operating a gas power plant in Southaven, Mississippi, to support a nearby data center.
- The notice suggests that the government may intervene on behalf of xAI. “This case concerns the interpretation and application of the Clean Air Act, as well as other legal and policy questions as to which the United States has a substantial interest, including its priorities with respect to promotion of artificial intelligence,” Adam Gustafson, principal deputy assistant attorney general for the Environment and Natural Resources Division at DOJ, said Wednesday in a notice to the U.S. District Court for the Northern District of Mississippi. “It is the policy of the United States to sustain and enhance America’s global AI dominance.”
- Gustafson said that the administration “is evaluating possible intervention or amicus participation in this lawsuit,” and “respectfully requests that the Court grant Defendants’ motion for extension of time to respond to Plaintiffs’ preliminary injunction motion.”
Dive Insight:
The NAACP sued xAI and MZX Tech in April, citing Clean Air Act violations and alleging that the companies were operating 27 gas turbines without an air permit at the site, which is on the Tennessee border south of Memphis.
Internal emails from the Mississippi Department of Environmental Quality show that between late March and early May, xAI installed 19 more turbines at the site to reach a total of 46, WIRED reported on Tuesday.
On May 6, the NAACP — which is being represented in this case by Earthjustice and the Southern Environmental Law Center — filed a request for a preliminary injunction against Musk’s companies, alleging they were operating the gas generating units “without any air pollution permits or the necessary pollution controls.”
Also on May 6, Musk announced on X that the previously announced merger between xAI and SpaceX would see xAI “dissolved as a separate company, so it will just be SpaceXAI, the AI products from SpaceX.”
Defendants’ attorney P. Ryan Beckett, with Butler Snow LLP, wrote in an email to opposing counsel that was included as part of a filing this week that their proposed briefing schedule was “disappointing,” given their “delay in filing suit and pursuing a PI eight months after the turbines were installed.”
“Denying professional courtesies to jam schedules in [Mississippi] is not going to get you very far with other lawyers or the court,” Beckett wrote.
Earthjustice senior attorney Elias Quinn responded in another email included in the same filing that the plaintiffs oppose the defendants’ request to extend their response deadline “in light of public health harms” and that they “do not oppose lightly.”
“Indeed, I believe this is the first time I have ever had to oppose such a request,” Quinn wrote. “If defendants are amenable to shutting down the gas plant during the pendency of the briefing, we would be amenable to such briefing extensions.”
According to the NAACP’s injunction request, the defendants argue that gas generators are “exempt” from permit and control requirements because the turbines are “mobile” sources and the installation is “temporary.”
“The first purported exemption is inapplicable; the second does not exist,” the plaintiffs wrote.
The Mississippi Department of Environmental Quality said in a July letter that the turbines are mobile “as each will remain affixed to a portable unit (i.e., a flatbed trailer),” according to the filing, but the plaintiffs dispute this.
“The turbines of the Colossus Gas Plant are not ‘mobile sources,’” the plaintiffs said. “This argument stretches the text of the Clean Air Act’s mobile source provisions beyond the breaking point.”
They cite “manufacturer specifications for Solar’s SMT-130 turbines which note that, once installed, the unit is 14 feet tall, almost 100 feet long, and weighs more than 200,000 pounds,” and the Clean Air Act’s definition of a stationary source as “any building, structure, facility, or installation which emits or may emit regulated air pollutant(s).”
The plaintiffs alleged that pollution increases from the gas turbines, “particularly on top of the already high levels of ozone and NOx pollution [in] the greater Memphis area — will likely impact the health of these members and public health generally.”
