A federal appeals court has reinstated a lawsuit challenging Alabama Power's plan to leave more than 21 million tons of coal ash in unlined pits along the Mobile River, sending the case back to federal district court after it was dismissed in 2024 on procedural grounds.

The 11th U.S. Circuit Court of Appeals ruled Wednesday in favor of environmental group Mobile Baykeeper, overturning a January 2024 dismissal by the U.S. District Court for the Southern District of Alabama. The appellate court said Mobile Baykeeper met the legal requirements to pursue the case "despite Alabama Power's spirited efforts to overcomplicate these questions."

The lawsuit, filed by the Southern Environmental Law Center on behalf of Mobile Baykeeper, argues Alabama Power's closure plan for coal ash ponds at Plant Barry threatens groundwater and nearby waterways in the Mobile-Tensaw River Delta.

"Today's ruling gives the people of Coastal Alabama their day in court," said Cade Kistler of Mobile Baykeeper. "This ruling and the community's desire to see the coal ash removed are a turning point. Leaving 21 million tons of toxic ash in an unlined pit beside the Mobile River is an unacceptable long-term risk for this coast and for the company's own shareholders. Alabama Power should seize this moment to negotiate a binding agreement to excavate and recycle the ash at Plant Barry like they claim to want to do."

Plant Barry sits in the floodplain of the Mobile-Tensaw River Delta. Environmental groups say the coal ash pits were built on wetlands below sea level and remain saturated with groundwater, allowing pollutants such as arsenic to seep into surrounding waters.

"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," said Barry Brock, senior attorney and director of the Alabama office of the Southern Environmental Law Center. "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."

The ruling comes amid growing scrutiny of the utility's handling of coal ash at the site. Environmental advocates pointed to a recent University of Alabama study that found sediment contamination in the Mobile River near Plant Barry at levels comparable to the 2008 Kingston coal ash spill in Tennessee, one of the largest environmental disasters of its kind in U.S. history.

Advocacy groups also cited renewed public attention from the documentary "Sallie's Ashes," which follows activist Sallie Smith's opposition to Alabama Power's plans for the site. The film premiered at the Telluride Film Festival.

"We were encouraged by the court's opinion confirming the message of our documentary that Alabama Power needs to answer for their actions at Plant Barry," the Coal Ash Action Group said. "The environment of our waterways and health of citizens are being harmed by the 21 million tons of toxic coal ash stored on the side of the Mobile River. These issues will now be subjected to scrutiny in a court of law."

The U.S. Environmental Protection Agency issued a notice of potential violation to Plant Barry in 2023, stating the facility "potentially violated" federal coal ash standards. In 2024, the EPA also rejected Alabama's proposed coal ash permitting program, saying it was less protective than federal regulations.

Meanwhile, the EPA is considering new rules that would shift more authority over coal ash pond closures to state regulators, a move environmental groups say could weaken nationwide safeguards designed to prevent contamination and catastrophic spills. 

Gabriella Chavez is a Report for America corps member who writes about growth and development in Baldwin County and our natural spaces for Gulf Coast Media. Your donation to match our RFA grant helps keep her writing stories like this one; please consider making a tax-deductible gift of any amount today by visiting https://tinyurl.com/yaf8yf5n.