The United States Court of Appeals for the 11th Circuit overturned the dismissal of a case filed by Mobile Baykeeper against Alabama Power Company over coal ash.
Mobile Baykeeper filed the lawsuit in 2022. The complaint states that closing the power company's Plant Berry coal ash lagoon with a synthetic cover will leave coal ash beneath. Mobile Baykeeper and other environmental groups are concerned that ash could allow arsenic and other toxic pollutants to seep into surrounding waters. The environmental groups are requesting that Alabama Power comply with federal regulations.
A state solid waste permit authorized the capping plan, but Mobile Baykeeper claimed that it violates three federal closure standards. Alabama Power has been in talks with the EPA on how to remedy potential violations.
The district court dismissed the case, finding that Mobile Baykeeper lacked standing and that its claims were not ripe for review. The federal appeals court disagreed.
"Sounds like run-of-the-mill environmental litigation so far," the opinion published Monday stated. "But after Alabama Power's motion to dismiss, the district court asked whether Mobile Baykeeper had standing to bring suit, ordered supplemental briefing, and held a hearing. Ultimately, the district court dismissed the complaint, finding both that Mobile Baykeeper lacked standing and that its claims were not ripe for review. We disagree on both points."
Mobile Baykeeper is asking Alabama Power to commit in writing to excavating and recycling all coal ash at Plant Berry.
"Alabama Power has contracted with a company that has built a facility on-site to recycle coal ash from Plant Barry into concrete," Mobile Baykeeper stated. "Alabama Power knows this can be done. The equipment and the contract are already in place. What is missing is a binding commitment to remove all of it."
The published opinion stated Mobile Baykeeper satisfied three traditional elements of standing: injury, causation and redressability.
"Mobile Baykeeper has satisfied all three standing requirements, and its claims are ripe, too—despite Alabama Power's spirited efforts to overcomplicate these questions," the Court stated. "We have no trouble rejecting the notion that an illegal closure plan can only be challenged after that plan is fully implemented. Same goes for the idea that failure to properly clean up a longstanding environmental harm cannot be legally challenged because the harm existed before the cleanup was required. Equally unconvincing is the contention that a state agency's discordant view of federal law would tie the hands of the federal courts."
During oral arguments, attorney Ed Haden, representing Alabama Power, said requiring the power company to file a lawful plan would not remedy the situation, as there is a distinction between having a plan and implementing it. He said implementing a plan requires many bureaucratic hurdles.
Alabama Power is already spending an estimated $1 billion to complete the closure.
1819 News has reached out to Alabama Power for comment on the opinion of the federal appeals court.
To connect with the author of this story or to comment, email [email protected].
Don't miss out! Subscribe to our newsletter and get our top stories every day or become a member to gain access to exclusive content and 1819 News merch.
