Alabama Coal Ash Lawsuit Can Continue, Appeals Court Rules

A yearslong court battle over the 21.7 million tons of coal ash sitting in one of Alabama’s most ecologically sensitive areas will continue after an appeals court ruling handed down Monday. 

The U.S. 11th Circuit Court of Appeals ruled that a lawsuit by Alabama-based environmental group Mobile Baykeeper challenging Alabama Power’s plans to leave the coal ash in place can proceed, overturning the decision of a lower court that had dismissed the complaint. 

Mobile Baykeeper’s lawsuit argues that the nearly 600-acre coal ash pond at Alabama Power’s James M. Barry Electric Generating Plant, near Mobile, violates the Environmental Protection Agency’s coal ash rules, largely because much of the coal ash remains saturated with groundwater. 

Baykeeper’s Cade Kistler told Inside Climate News he hopes the ruling will spur Alabama Power to agree to remove the coal ash rather than continue to fight to leave toxic waste from the coal-fired power plant in the impoundment pond.

“We certainly feel vindicated, but more importantly, I think it feels like an opportunity here for Alabama Power to see that there’s a different way forward than battling this,” Kistler said. 

Alabama Power, through a spokesperson, said its coal ash ponds were in compliance with the law. 

“Alabama Power continues to be in compliance with all applicable federal and state environmental laws and regulations,” the company’s response said. “We will continue to follow any final court or agency decisions. Because litigation related to Plant Barry coal ash plans is ongoing, we are unable to comment further at this time.”

Coal ash, or coal combustion residuals, is the solid material leftover from burning coal. It often contains substances like arsenic, mercury, lead and heavy metals that can cause human health problems, including cancer. At large coal plants like Barry, this ash material was flushed into wet, unlined impoundments or ponds for decades, building up massive volumes of toxic substances and often significantly polluting groundwater in the area. 

New EPA coal ash rules enacted in 2015 required utilities to close most unlined coal ash ponds either by moving the ash to lined landfills or by covering the ash in place, provided the utilities could prove contaminants from the ash were not polluting groundwater. 

Alabama Power quickly announced plans to cover all of its ash ponds in place, and has remained committed to those plans, despite significant pushback, especially around Plant Barry. The ash pond at Barry is located on the banks of the Mobile River, just upstream from the Mobile-Tensaw Delta. 

The Delta is a largely undeveloped tangle of streams, bayous and swamps that flows south toward Mobile Bay and the Gulf of Mexico. It is one of the most biodiverse places in North America, and has been dubbed “America’s Amazon” for the remarkable variety of plant and animal species found there. 

In 2018, Alabama Power was fined $1.25 million for groundwater pollution violations around its coal ash ponds, and received another $250,000 fine in 2019. 

In 2023, the EPA issued Alabama Power a notice of potential violations over the coal ash at Plant Barry, stating that the company had “potentially failed to meet the criteria for conducting the closure of the Plant Barry Ash Pond.”

The EPA, under then-Administrator Michael Regan, took the position that coal ash ponds could not meet legal requirements if the ash remained in contact with groundwater. 

Monday’s ruling said the courts were the appropriate venue to decide that issue.  

“First, the straightforward issue at the heart of this case is whether federal law allows for an impoundment to be capped in place with coal ash still in contact with groundwater,” the ruling said. “Federal courts can answer that question.”

Originally, the Baykeeper lawsuit was dismissed largely on procedural grounds. 

The U.S. District Court for the Southern District of Alabama had granted Alabama Power’s motion to dismiss the case in 2024, agreeing with the company’s arguments that Mobile Baykeeper lacked standing to bring the suit and that its claims were not ripe for review, because of the changing landscape of coal ash regulation across the country. 

On Monday, the appeals court ruling said, “[w]e disagree on both points,” in a ruling that remanded the case back to the district court for trial. 

Mobile Baykeeper is represented by the Southern Environmental Law Center in the case. 

“I am grateful the Court of Appeals saw past Alabama Power’s meritless arguments and delay tactics and is ordering this case to move forward,” Barry Brock, a senior attorney and director of Southern Environmental Law Center’s Alabama office, said in a news release. “This case is about holding Alabama Power accountable. The company’s reckless plan at Plant Barry is a danger to communities surrounding the Delta and Mobile Bay.” 

Alabama Power has already announced plans to recycle more of its coal ash at Plant Barry, but it is not clear how much will or can be recycled. 

The Alabama Power spokesperson said an on-site recycling plant is under construction and expected to go online later this year. The company plans to leave whatever material is not recycled covered in place. 

Kistler said the company should commit to recycling or removing all the ash at Plant Barry. 

“Nobody in coastal Alabama wants this coal ash here, and now is a great opportunity for Alabama Power to figure out how to solve this problem that leaves everybody coming out feeling a little bit better,“ he said.