The federal appeals court ruled Monday that the utility must keep appearing in court to explain why placing a tarp over a massive toxic sludge pit constitutes environmental remediation.
MOBILE, Ala. — Following a ruling by the U.S. 11th Circuit Court of Appeals on Monday, Alabama Power will be forced to continue defending its preferred environmental remediation strategy of placing a lid on 21.7 million tons of toxic coal ash and simply walking away.
The lawsuit, brought by the environmental group Mobile Baykeeper, challenges the utility’s plan to leave decades worth of heavy-metal-laden sludge sitting in an unlined pit adjacent to the Mobile-Tensaw Delta, one of the most biodiverse regions in North America. Attorneys for the power company had argued that the case should be dismissed so the utility could get back to its core business of pretending the ash pond does not exist.
Under current federal guidelines, utilities are technically required to prevent groundwater contamination. Alabama Power’s proposed solution, widely known in the industry as "cap-in-place," involves placing a synthetic cover over the waste, planting some grass on top, and permanently reassigning the liability to future generations of marine life.
We are deeply disappointed the court failed to recognize our unlined, leaking riverbank pit as a permanent, nature-based storage facility.
The dispute centers on the EPA’s 2015 Coal Combustion Residuals rule, a regulatory framework that utility companies have historically treated as a series of avant-garde thought experiments. While the EPA has explicitly stated that coal ash cannot be left in unlined pits that intersect with groundwater, Alabama Power has maintained that its specific 21.7 million tons of ash possess a unique, proprietary inability to migrate into the surrounding wetlands.
The 11th Circuit’s decision means the case will proceed to discovery, potentially delaying the utility’s timeline for successfully forgetting where it put the massive reservoir of arsenic and mercury. Environmental advocates have pushed for the ash to be excavated and moved to a lined landfill away from the water, a process Alabama Power has dismissed as wildly expensive compared to the zero dollars it currently costs to let it slowly seep into the delta.
The utility is expected to appeal the decision while highlighting the ash pond's new status as a passive biodiversity hub in its upcoming Q3 sustainability disclosures.