In April, the NAACP sued Elon Musk’s xAI under the Clean Air Act. The suit alleges that the company has been running dozens of gas turbines without required permits at a power plant in Southaven, Mississippi, that supplies its massive “Colossus 2” data center. (Mississippi regulators say no permits were needed.) In June, the Justice Department moved to intervene and have the suit thrown out, the first time the federal government has entered a citizen suit against a private company in order to end it. When the district court didn’t rule, DOJ appealed to the Fifth Circuit on September 18, calling the delay an “effective denial.” The government argues that xAI’s Grok, which the Pentagon uses, is crucial to national security, a justification the administration increasingly invokes to escape judicial review. It also claims that its statutory right to intervene in citizen suits carries with it the power to dismiss them
As Steve Vladeck, who sits on the board of Earthjustice, co-counsel for the plaintiffs, explained when DOJ first made the argument in June, the implications reach far beyond one data center:
[M]ost 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. ... But the legal theory the government is advancing reaches far beyond one (massive) data center and the power plants being built to power it. It is an Article II argument—rooted in the President’s duty to “take Care that the Laws be faithfully executed”—that, taken to its logical limits, would give the executive branch unilateral authority to shut down any citizen suit under any environmental statute, against any defendant, whenever the government decides that non-enforcement better serves its policy goals. …
Ultimately, the Trump administration is asking a federal court to hold that the government’s unwillingness to enforce the law is itself a reason no one else may. That is not a national-security argument, however it is packaged. It is a claim about who gets to hold power accountable—and the answer the government is offering, for the first time in the citizen suit’s half-century history, is “only us, and only when we choose to.”
Some conservative and libertarian scholars have long questioned whether citizen suits square with Article II, and that’s a legitimate debate for Congress and the courts. The administration is asking for something far broader: a standing executive veto over lawsuits Congress expressly authorized, exercised case by case on behalf of whichever defendants it favors. Its first beneficiary is a company owned by the world’s richest man. A president who can decline to enforce the law and also forbid anyone else from enforcing it gets to decide what the law requires and whom it binds.
The Executive Watch is a project of the Institute for the Study of Modern Authoritarianism, and its flagship publication The UnPopulist, to track in an ongoing way the abuses of the power of the American presidency. It sorts these abuses into five categories: Personal Grift, Political Corruption, Presidential Retribution, Power Consolidation, and Policy Illegality. Click the category of interest to get an overview of all the abuses under it.
© The UnPopulist, 2026
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