More formally called “coal combustion residuals” (CCR), coal ash is the waste left over when coal‑fired power plants make electricity. It usually ends up piled in landfills or dumped into big, watery pits called surface impoundments. And there is a whole lot of it.
In Alabama, one of those pits became the test case for a bigger question: when a plant has been polluting for decades, can neighbors still go to federal court now to challenge the company’s chosen “cleanup” plan, or do they have to wait years until the closure is finished?
How Coal Ash Got Regulated
The Resource Conservation and Recovery Act (RCRA) lets the Environmental Protection Agency (EPA) regulate waste and authorizes citizen suits. Under that statute, in 2015, EPA adopted the Coal Ash Rule, which sets binding national closure standards for coal ash impoundments. Existing ponds could either be excavated or “cap‑in‑place” (closing them by leaving ash in place under a cover system rather than removing it), but only if closure eliminated free liquids and prevented ongoing releases to groundwater and surface water.
A few years after that, Alabama’s environmental agency, the Alabama Department of Environmental Management (ADEM), adopted its own CCR regulations. These largely mirrored EPA’s Coal Ash Rule performance standards and formally recognized the same two closure options: removal or closure in place.
Alabama Power submitted a permit application to ADEM to close the Plant Barry ash pond in place rather than excavate the ash. ADEM approved that closure‑in‑place approach in 2021, issuing a permit that runs through roughly 2031. At the same time, ADEM sought EPA approval of Alabama’s CCR permitting program. The EPA objected that Alabama’s program, including permits for unlined impoundments closed in place, would allow ongoing groundwater contamination and was less protective than federal standards, and it proposed to deny the state program.
The Stakes on the Ground
Alabama Power Company operates the James M. Barry Electric Generating Plant (Plant Barry) in Mobile County and uses a surface impoundment there to receive wet‑sluiced coal ash. The Plant Barry ash pond sits in wetlands along the Mobile River and holds more than 21 million tons of coal ash and associated pollutants.
Mobile Baykeeper is a nonprofit whose members live, own property, and recreate in the Mobile River watershed and the Mobile‑Tensaw Delta. Some members say they’ve stopped fishing or swimming near Plant Barry because of fears about coal ash contamination.
Baykeeper filed an RCRA citizen suit in September 2022, claiming Alabama Power’s closure‑in‑place plan for the Plant Barry ash pond violates federal coal ash rules by leaving large amounts of ash below sea level and in contact with water, allowing contaminants to leach into public waters instead of meeting closure performance standards. Baykeeper characterizes the plan as an unlawful choice to permanently store coal ash in an unlined, flood‑prone impoundment along the Mobile River. It seeks declaratory and injunctive relief requiring a compliant closure plan rather than a cap‑in‑place approach, which it argues guarantees ongoing contamination.
In early 2023, after Baykeeper had already sued, EPA sent Alabama Power a notice saying the Plant Barry closure‑in‑place plan appeared to violate federal coal ash standards, including requirements to eliminate free liquids and prevent ongoing releases. EPA hasn’t brought its own case, but it has been in ongoing talks with Alabama Power about fixing those problems, while Alabama and ADEM have been separately fighting EPA in court over the agency’s rejection of Alabama’s coal‑ash permitting program.
Thrown Out on Justiciability
The district court granted Alabama Power’s motion to dismiss, but not on the grounds the parties initially focused on. After a supplemental briefing and a hearing, it threw the case out for lack of standing and lack of ripeness. The court accepted that Baykeeper’s members were injured, but held that causation and redressability were missing because Plant Barry had been leaking for decades and any new closure plan would take years and depend on future regulatory decisions. It also concluded the claims weren’t ripe until the closure was closer to its projected 2031 completion date.
On appeal, the Eleventh Circuit reversed, reviving the lawsuit. It treated Baykeeper’s case as what it is: a challenge to an allegedly unlawful closure plan that’s already being implemented—not a speculative fight about what might happen in 2031.
The panel had no trouble with injury-in-fact. Local members who fish, boat, or own property along the Mobile River and say they avoid parts of it because of coal‑ash contamination have the kind of recreational and aesthetic injuries courts have long recognized in environmental cases. The real action was in what comes next: causation, redressability, and ripeness.
Tracing Harm
Because the river had been “poisoned” for decades and the closure plan wouldn’t be finished until 2031, the district court said Baykeeper couldn’t trace its injuries to that plan—but the Eleventh Circuit flatly rejected that view.
The fact that Plant Barry has been contaminating local waters for years does not mean a noncompliant closure plan can’t “cause” ongoing harms, the circuit court said. If that were the rule, no plaintiff could ever challenge a bad remediation or closure decision at a legacy site; every defendant could say, “the harm started long ago, so you can’t tie it to what we’re doing now.”
Instead, the court accepted Baykeeper’s theory: federal law requires a compliant closure plan, a compliant plan would reduce coal‑ash leaching, and Alabama Power’s current plan doesn’t, so the leaching continues. On that framing, the closure plan itself is a present, traceable source of the injury—even if the pollution started decades ago.
Redressability and Ripeness
The Eleventh Circuit was equally unconvinced by the district court’s redressability and ripeness analysis. The lower court focused on how long a new closure plan would take, how often plans can change, and how EPA and ADEM might shift course, treating all of that as a reason to doubt both whether a court order would help and whether the dispute was ripe at all.
The appellate panel reframed the issue. Baykeeper isn’t asking the courts to predict some future, hypothetical plan; it’s asking whether the existing closure‑in‑place plan Alabama Power is already implementing under an ADEM permit complies with the Coal Ash Rule. That is a present, mostly legal question about capping ash that still sits in contact with groundwater.
From there, the court’s timing logic is straightforward: redressability doesn’t require a perfect or immediate fix, only a court order that is likely to make things meaningfully better over time. If a compliant closure plan would reduce leaching and improve conditions for Baykeeper’s members, that’s enough. And on ripeness, delay doesn’t preserve a neutral status quo; it prolongs a closure approach Baykeeper plausibly alleges is unlawful, while its members say they are being harmed now.
On remand, the district court must now decide whether Alabama Power’s closure‑in‑place plan actually complies with the Coal Ash Rule.
A Mainstream Decision
The Eleventh Circuit didn’t stake out radical new territory so much as join a growing mainstream. Other circuits, too, have treated ongoing implementation of concrete cleanup plans as present‑tense conduct that can satisfy causation, redressability, and ripeness, even when the underlying contamination is decades old. Mobile Baykeeper mostly crystallizes that consensus for coal‑ash closures and makes clear that legacy pollution does not immunize today’s remedial choices from federal review.
