Coal Ash Fight Headed Back to Court

For immediate release: May 18, 2026

Mobile Baykeeper wins Plant Barry coal ash lawsuit appeal

Federal Appeals Court rejects dismissal, points to ongoing Mobile River pollution

MOBILE, Ala. – Today the 11th Circuit Court of Appeals revived a lawsuit filed by the Southern Environmental Law Center on behalf of Mobile Baykeeper against Alabama Power’s plan to permanently leave more than 21 million tons of toxic coal ash in unlined pits on the bank of the Mobile River.

The U.S. District Court for the Southern District of Alabama dismissed the lawsuit in January 2024 on narrow, technical grounds. In today’s opinion reversing that ruling, the Court said Mobile Baykeeper satisfied those technical requirements, “despite Alabama Power’s spirited efforts to over complicate these questions.”

"Today's ruling gives the people of Coastal Alabama their day in court," said Cade Kistler of Mobile Baykeeper. "Alabama Power has said publicly they want to recycle this ash. This ruling gives them the opportunity to make that commitment real and remove toxic coal ash from the banks of the Delta. This ruling and the community's desire to see the coal ash removed are a turning point. Leaving 21million 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."

Located in the floodplain of the Mobile-Tensaw River Delta, known as “America’s Amazon,” Plant Barry’s unlined coal ash pit was built on wetlands and sits below sea level, with the ash saturated deep in groundwater. For decades, coal ash at Plant Barry has polluted the surrounding waters with high levels of arsenic and other coal ash pollutants. Alabama Power’s decision to store millions of tons of coal ash in a pit next to the Mobile River and Delta ensures continued pollution.

“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, a senior attorney and director of Southern Environmental Law Center’s Alabama office. “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.”

This ruling comes on the heels of a University of Alabama study showing Plant Barry is actively polluting Mobile River sediments at levels comparable to the catastrophic 2008 Kingston spill, and the release of the documentary film Sallie’s Ashes, which premiered at the Telluride Film Festival and chronicles Sallie Smith’s final fight against Alabama Power’s plan to leave the coal ash in place.

EPA issued a Notice of Potential Violation in March 2023 stating Plant Barry “potentially violated” federal coal ash standards. Nearly a year later EPA denied Alabama’s coal ash permitting program because it was less protective than federal coal ash rules. In January 2024, Alabama Power announced plans to build a facility at Plant Barry capable of sustainably recycling 700,000 tons of coal ash per year for use in concrete products, though to date, the company has refused to commit to recycling all the coal ash from its leaking lagoon and announced it is not changing its plan to leave its coal ash in place.

Currently the Environmental Protection Agency (EPA) is proposing a rule that would give more authority to state regulators when it comes to coal ash pond closures. It could also eliminate common sense, nationwide minimum safeguards that protect clean water from coal ash pollution and prevent catastrophic coal ash spills and other disasters.

###

Mobile Baykeeper is a nonprofit citizen advocacy organization headquartered in Mobile, Alabama. Mobile Baykeeper is defending a reviving the waters of Coastal Alabama and Mobile Bay, including its watershed, and the ground waters and marshlands that are connected to these surface waters. Mobile Baykeeper has been working for more than seven years to safeguard and improve water quality in the Mobile Bay Watershed by the safe, proper disposal of coal ash in fully lined,dray landfills, or to be recycled into concrete. mobilebaykeeper.org/

The Southern Environmental Law Center is one of the nation’s most powerful defenders of the environment, rooted in the South. With a long track record, SELC takes on the toughest environmental challenges in court, in government, and in our communities to protect our region’s air, water, climate, wildlife, lands, and people. Nonprofit and nonpartisan, the organization has a staff of 250, including more than 160 legal and policy experts and advocates, and is headquartered in Charlottesville, VA, with offices in Asheville, Atlanta, Birmingham, Chapel Hill,Charleston, Nashville, Richmond, and Washington, DC. selc.org

Contact:

Caine O’Rear, Mobile Baykeeper, 251-433-4229, corear@mobilebaykeeper

Terah Boyd, SELC, 678-686-8483, tboyd@selc.org