Waiting 26 years ‘for this shoe to drop’: Musk’s AI company joins the fight to strip citizens of their power to sue

Their argument, supported by the Trump administration, is that the Constitution reserves tremendous power for the president and federal agencies to decide how — or whether at all — to enforce federal law. They contend Congress should never have handed that power to others through so-called citizen suits that are part of environmental, campaign finance and certain other laws.

Environmentalists say it would be devastating to lose this essential, decades-old tool that is used to impose fines and halt lawbreaking by bad actors. Citizen suits, for example, have extracted millions from heavily polluting oil and gas operations, and ensured that lead pipes in Flint, Michigan, would be removed after its water crisis.

Legal experts say four pending federal cases — one of them filed last week — are moving forward at a time when the conservative majority on the Supreme Court gives opponents of citizen suits a greater chance than ever of success. The hard part for those opponents now is winning early federal cases and creating disagreement between the country’s appeals courts, which may help convince the Supreme Court the issue is important enough for a nationwide ruling.

Back in 2000, a Supreme Court opinion opened the door for that possibility.

“Many of us who worked in this area have been waiting basically 26 years for this shoe to drop,” said Richard Lazarus, a Harvard professor with decades of experience in environmental law.

A more inviting Supreme Court could take up the issue

Lazarus was referring to former moderate Justice Anthony Kennedy’s comments in a Clean Water Act case that citizen suits raised “difficult and fundamental” questions about whether they improperly dilute executive power. The late conservative Justice Antonin Scalia wrote in a dissenting opinion in the same case that citizen suits turn “over to private citizens the function of enforcing the law.” He avoided explicitly saying they were constitutional.

“The court is more like Scalia’s court since he died than it ever was when he was there,” said Lazarus.

He observed that those who lost cases where Scalia dissented are rushing back to today’s court hoping for a more favorable result.

The critical issue for citizen suits is who — the government or private citizens — collects fines and has control. A person filing a citizen suit must tell the government ahead of time. The government can stop the suit if it sufficiently pursues the case itself, but its options are limited and the person suing can stay involved. Citizen suits can force compliance with the law and result in fines, which go to the U.S. Treasury.

Prominent law firms and companies are pushing against citizen suits

Efforts to increase presidential power and limit who can sue have grown in recent years. They gained vital federal support this summer.

That’s when the Pacific Legal Foundation, a right-leaning organization with recent Supreme Court success, chose a routine citizen suit in Tennessee federal court for a broader constitutional challenge.

They signed on as attorneys for Springfield, a town of roughly 19,000 north of Nashville, that was in the early stages of fighting allegations brought by Tennessee Riverkeeper that it had let too much sewage flow from its treatment plant into a nearby creek, violating the Clean Water Act.

It was the thirty-first citizen suit Tennessee Riverkeeper had filed under the Clean Water Act since 2010. Pacific Legal argued this was part of the problem — a private group of unelected activists had repeatedly forced others to expend resources defending themselves.

It’s better when “the government is the one wielding the power because the government remains accountable to the people,” said Sean Radomski, a Pacific Legal Foundation attorney on the case.

Radomski isn’t targeting every lawsuit a person can bring under federal law — he takes exception to those where fines go to the Treasury and where he says people are improperly taking on the government’s powers. Civil rights lawsuits, for example, where damages are paid directly to those wronged, wouldn’t be touched. Nor would many procedural challenges.

Elon Musk’s AI company is also getting into the fight

Musk-led xAI argued many similar points in its ongoing bid to rid itself of the NAACP’s lawsuit accusing it of operating dozens of gas turbines near Memphis to power a data center without first getting permits. The civil rights group told a Mississippi federal court that the turbines are a pollution threat to those who lived nearby, many of whom are Black. One of their demands was to halt the gas turbines until the company complied with the law.

The Trump administration intervened in support of Musk’s company, arguing that turning off the power to artificial intelligence that supports the Department of War would harm national security. Because the Trump administration wants the suit dismissed, the NAACP shouldn’t be allowed to proceed with it — prudent enforcement requires balancing interests, including national security, the DOJ said.

Laura Thoms, director of enforcement at Earthjustice, which is representing the NAACP, said the government traditionally gets involved in cases to enforce the law, not to argue that it doesn’t matter if the law is broken.

“This administration has determined that the company should be allowed to continue to pollute and that therefore, they should have the unilateral and unreviewable authority to veto our citizen suit,” she said.

Changing the law would have profound consequences at a critical time

Citizen suits were written into foundational environmental laws because Congress understood that the federal government had limited resources to go after polluters and that the politics of some cases could be dicey — the government sometimes is the polluter. That’s why outside groups are necessary to fulfill the law’s purpose, according to Lazarus.

Some argue that dynamic is especially important now. The Trump administration has slashed air and water protections and promoted fossil fuels. They’ve also constrained enforcement that could slow energy projects to only the most extreme cases, such as an “imminent and substantial threat to human health,” according to a federal guidance memo. Environmentalists say citizen suits are vital for filling the enforcement gap this administration created.

Leaner budgets in many states make the problem worse.

Thoms said the potential for corruption could increase, too — the president could unilaterally waive laws to benefit friends.

She said that those who live in states with strong protections may be fine if citizen suits end, but other areas will be “sacrifice zones” where citizens have few options to fight pollution in their backyard. And the unprotected are more often poor and majority-minority communities.

Many experts are skeptical of the challengers’ claims of a powerful president that gets to unilaterally shape enforcement even outside of criminal law. They argue the country’s history is rife with examples of that task falling to private individuals, too — a contention the challengers reject.

David Adelman, a law professor at the University of Texas at Austin School of Law, said before the current conservative majority on the Supreme Court, he would have thought there was a close to zero percent chance the challenges would succeed.

“But this court has been so protective of the executive branch’s complete control of implementation of federal law,” he said, “that it’s not implausible that something like this could prevail.”

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