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Steve Vladeck — DOJ, Citizen Suits, and the xAI Litigation
retrieved 2026-07-11
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234. DOJ's Alarming Arguments in the xAI Case
The Justice Department's move to toss out a Clean Air Act lawsuit against xAI for illegally operating methane gas-burning turbines to power data centers turns on a dangerous new constitutional claim.
Steve Vladeck
Jun 22, 2026
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Welcome back to “One First,” a newsletter that aims to make the U.S. Supreme Court more accessible to lawyers and non-lawyers alike. I’m grateful to all of you for your continued support, and I hope that you’ll consider sharing some of what we’re doing with your networks.
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Every Monday morning, I’ll be offering an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current issues, or key players (“The One First ‘Long Read’”); and some Court-related trivia. If you’re not already a subscriber, please consider becoming one—and upgrading to a paid subscription (for which we just launched new bonus features) if your circumstances permit:
Somehow, the Supreme Court avoided making a lot of news last week—which means we should buckle up not only for this week, but also, as I explain below, for next week, too. But the Court’s relative quiet gives me an opportunity to write about one of the more substantively outlandish (and alarming) filings we’ve seen from the Trump Justice Department—and boy is that saying something: the motion to intervene (for the purposes of moving to dismiss) it filed last Monday in NAACP v. x.AI Corp. In that case, the NAACP is suing xAI under the Clean Air Act because the company allegedly built and is operating dozens of methane gas-burning turbines—27 at the time of filing; more than twice as many today—to power its Colossus 2 data center in Southaven, Mississippi, exposing nearby, predominantly Black communities to harmful emissions, and all without obtaining the air permits or pollution controls the Act requires for major sources of pollution.1
DOJ’s filing is remarkable in at least three respects. First, it argues that the NAACP’s suit threatens “American national, economic, and energy security by seeking to shut off the power supply for artificial-intelligence innovation that supports the Department of War’s military operations”—pointing to the military’s reliance on xAI’s Grok model for national security missions, including recent strikes against Iran.
Second, and even more significantly, it objects to all “citizen suits” under the Clean Air Act on constitutional grounds—claiming that decisions about whether to enforce federal law rest exclusively with the executive branch and cannot be overridden by a private citizen suit, even one Congress has expressly authorized. Thus, in addition to having the right to intervene in citizen suits brought under the Clean Air Act, DOJ claims the right to unilaterally have such suits dismissed. Third, and most gallingly, DOJ is making this argument in a context in which it is making no argument that xAI is acting legally. In other words, the central premise of DOJ’s submission is that xAI can be flagrantly breaking the law (and heavily damaging the environment), and only the executive branch of the federal government has the constitutional authority to do anything about it.
Needless to say, this is (potentially) a huge deal—and turns what was already a massively significant environmental fight over data centers and the corners companies are cutting to power them into an even bigger referendum on the question of who Congress can authorize to enforce the statutes it enacts.
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More on that below. But first, the news.
On the Docket
The Merits Docket
The Court handed down (only) three more rulings in argued cases last Thursday, none of which were in any of the “big” cases for which we’re still waiting (more on those in a moment):
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In United States v. Hemani, Justice Gorsuch wrote for a unanimous Court that the Second Amendment bars the federal government from prosecuting Ali Hemani—a Texas man who used marijuana a few times a week and kept a legally purchased gun at home—under the federal law that makes it a crime for an “unlawful user” of a controlled substance to possess a firearm. Justice Gorsuch rejected what he called the government’s “ambitious theory” that mere drug use could automatically strip someone of their Second Amendment rights—while pointedly leaving the door open to prosecutions on different facts. That narrowness may help to explain the Court’s unanimity, but beneath the surface, there are some real divisions here—led by Justice Jackson’s (in my view, persuasive) observation that cases like these prove that the framework of the conservative majority’s 2022 ruling in Bruen is wholly “unworkable.” (There’s also a rare two-justice concurrence in the judgment by Justice Alito that was joined by … Justice Kagan.) If nothing else, it’ll only be a matter of time before the Court has to confront the harder questions it ducked here—about exactly when the government can prohibit gun possession based on a defendant’s other behaviors.