Imagine a landfill in your neighborhood. Your family has lived here for generations; the landfill has been around less than a decade. Waste contaminated with heavy metals is stored there, and you suspect that it's making you sick. You also suspect the landfill was put there because your community is poor and used to being stepped on.
You begin speaking out, telling your story to anyone who will listen. You alert the media and organize local meetings. Reporters start asking questions. TV crews show up. You start getting calls from around the country, and you're even invited to testify at government hearings. Just when it seems like people are finally listening, you find yourself facing a multimillion-dollar lawsuit for posting statements on Facebook.
"As they say, 'there ought to be a law' against bringing this kind of suit against community members for speaking out."
This scenario may be difficult to imagine -- unless you live in Uniontown, Alabama. In March, the operator of a 1,200-acre landfill in Uniontown filed a $15 million lawsuit against three local activists in the rural city of 2,500. About nine in 10 Uniontown residents are Black, and attorneys representing the defendants say the town is a perfect example of a "low-income community of color overburdened with an unfair share of environmental hazards," including the landfill, a cheese manufacturer and sewage problems.
"The per capita income in Uniontown is between $8,000 and $9,000; it's implausible to think that the landfill expects to collect millions of dollars from this suit," said Marianne Engelman Lado, an attorney working with the defendants on behalf of the group Earthjustice. "For community members, it feels very much like an attempt to intimidate people."
The lawsuit accuses outspoken activist Esther Calhoun and three other members of a local environmental justice group called Black Belt Citizens Fighting for Health and Justice of making "false and defamatory" statements about the landfill and its current operator, Green Group Holdings. Most of the statements appeared on the group's Facebook page, and generally claim that the landfill has polluted air and water and "desecrated" a local cemetery. The defendants allegedly did not respond to requests from the landfill to delete the posts, according to the complaint.
Here's one of the Facebook posts cited in the complaint, with emphasis added by the plaintiffs:
October 23, 2015: Arrowhead Landfill and its owners, Green Group Holdings, neglects laws, peoples' rights, and our culture. First, corruption and unlawful actions get the landfill here. Then, 4 million tons of coal ash and garbage from 33 states. Now, Arrowhead landfill and Green Group Holdings are trespassing and desecrating a black cemetery. Black lives matter! Black ancestors matter! (Emphasis added.)
Lado pointed out that language highlighted by the plaintiffs as defamatory also includes a statement declaring that all people should "have the right to clean air and clean water."
"As they say, 'there ought to be a law' against bringing this kind of suit against community members for speaking out," Lado said.
Mike Smith, an attorney who has represented the landfill since 2007 and filed the lawsuit, told Truthout that he respects the right to free speech, but claims there is "a line beyond which you really can't go." He argues that members of Black Belt Citizens falsely accused his client of illegal activities that could be considered felonies, and in the competitive world of waste disposal, that "damages our ability to get contracts."
In 2013, Calhoun and other residents filed a federal civil rights complaint against state regulators for reauthorizing permits for the landfill without considering how the facility impacts their already overburdened community, which is majority Black. The complaint is not the first of its kind in Alabama, and the Environmental Protection Agency (EPA) recently agreed to investigate a similar complaint filed by a group of Black residents over a landfill in the southeastern corner of the state earlier this year.
Alabama and other Southern states are popular places to dump waste of all kinds, and for years environmental justice advocates have complained that landfills, especially those that store dangerous waste, are built next to low-income and Black neighborhoods all too often. A 2003 civil rights complaint filed with the EPA states that all of the more than 31 landfills permitted in Alabama at the time were located in predominately Black communities, but take waste from predominately white areas. Like so many others, the complaint was dismissed.
Tons of Coal Ash and Sacred Grounds
The Arrowhead Landfill opened in Uniontown under a different operator in 2007 and has had a rocky relationship with its neighbors ever since. Some families live directly across the street from the facility, and they have complained about foul odors, vermin, noisy truck traffic and declining property values -- the sort of problems that one might expect when living by a dump. Residents, including defendants in the lawsuit, were also angered when landfill operations intruded on a wooded cemetery near the remains of a church dating back to the days of segregation.
"Do you think that a landfill would be allowed to be built and to operate this way next to a cemetery if this weren't a poor Black town?" Calhoun said in testimony submitted to the US Commission on Civil Rights earlier this year.
And then there's the coal ash. In 2008, a coal ash impoundment in Kingston, Tennessee, burst open, releasing a billion gallons of toxic sludge left over from coal-burning power plants across 300 acres of rural land and waterways. During the cleanup of the unprecedented disaster, the EPA approved emergency plans to ship large amounts of the coal ash to the Arrowhead Landfill. Four million tons of coal ash, which contains dangerous levels of heavy metals, were then transferred to Uniontown by rail and trucked into the landfill.
In the years since, nearby residents have reported large amounts of dust blowing in the wind and a rash of new and unexplained illnesses ranging from kidney problems and sleep apnea to asthma and bronchitis, according to Earthjustice and testimony filed with federal officials. Some residents suspect runoff from the landfill is contaminating drinking water wells, and preliminary tests of water around the landfill conducted by Elizabeth Dobbins, a professor of natural sciences at Samford University, found elevated levels of heavy metals associated with coal ash and linked to an array of health problems.
Green Group Holdings, which bought the landfill in 2011 after the coal ash arrived, says it has never received an environmental violation from state regulators, and the coal ash is now safely stored under an earthen cap. The company says that any claims that fugitive dust and contaminated water have polluted nearby homes are false, and notes that after taking over operations at Arrowhead, it spent money to move the entrance of the landfill away from residential areas. The landfill meets updated EPA requirements for storing coal ash, and in 2015 the company even began to solicit coal ash from other facilities that don't meet the new standards.
Smith said that at one point a bulldozer working for the landfill did mistakenly tear into the woods where the cemetery is located, but argues that it caused no real damage to graves. He said that the landfill's operators have since worked to create a buffer zone around the cemetery and established a local trust to maintain it. Two wells that monitor for potential leaks of explosive gases and liquids from the landfill have been moved out of the buffer zone and onto landfill property.
However, these efforts did little to resolve ongoing disputes with Calhoun and others, who say strong odors make visiting the cemetery difficult -- and landfills should not be interfering with sacred Black spaces to begin with. In 2013, residents filed a complaint with the EPA under the Civil Rights Act of 1964, claiming that the Alabama Department of Environmental Management (ADEM) failed to examine the "discriminatory and disproportionate" impacts the landfill has on the already overburdened Black community and to require proper environmental safeguards, especially for the cemetery, when regulators reauthorized permits for the facility. The EPA has yet to make a determination.
Environmental Racism: Where Are the Investigations?
In his own testimony before the US Civil Rights Commission, Smith dismissed the idea that race played a role in decisions around Arrowhead. He stated that the landfill lies above an underground chalk formation that can block pollutants from migrating underground, making the location "one of the best imaginable." Smith argued that the facility's monitoring wells and "composite liner" also made it a good option for Kingston's coal ash.
Smith may be taking Calhoun and her allies to court, but the civil rights complaint is directed toward state regulators, not Green Group Holdings. When asked about Arrowhead and other landfills, ADEM director Lance LeFleur has repeatedly argued that state law grants local governments -- not his regulators -- authority over siting and zoning. The chairman of the Perry County Commission, where Uniontown is located, recently defended the decision to bring the landfill to Uniontown.
"The department has no ability to oversee the siting of landfills, but rather to make sure that the landfill, wherever it is sited ... is safe and protective of health and the environment," LeFleur recently told state commissioners.
Lado and Earthjustice, however, argue that Title VI of the Civil Rights Act requires that state agencies like ADEM conduct a socioeconomic analysis as part of the permitting process, because they receive federal funding. Title VI prohibits federal funds from being spent in a way that supports racial discrimination, so how can regulators know they are in compliance if they don't do an analysis?
Lado points to the 2003 complaint filed against ADEM stating that all of the landfills in Alabama are "located in predominantly African American communities, but serve predominantly white communities." Half a dozen environmental justice groups filed the complaint with the EPA to challenge landfills in their respective neighborhoods and the statewide trend. Under Title VI, they argued, ADEM could not ignore this "clear pattern of discrimination."
The EPA dismissed the complaint but warned ADEM that its failure to adequately consider socioeconomic factors, including race, at any point in the siting and permitting process could lead to adverse and discriminatory impacts in the future. ADEM, however, refused to conduct such analysis despite numerous public appeals, and it appears nothing has changed 13 years later.
"They don't have a program; they don't do analysis," Lado said.
In his report to state commissioners, LeFleur discussed several environmental justice programs at ADEM, including increased monitoring in "environmental justice areas," community trainings for filing comments and complaints, and educational partnerships with schools. There was no mention, however, of adding racial and socioeconomic analysis to the permitting process for landfills and other sources of pollution.
"Part of the responsibility is on Lance LeFleur and the State of Alabama, and part of it is on the EPA for not having the political will for enforcing this law," Lado said.
Lado said there are currently three complaints against ADEM over landfills before the EPA, including the complaint over Arrowhead, but environmental justice advocates are not getting their hopes up. The EPA's Office of Civil Rights has received more than 200 complaints since it opened 23 years ago but has never formally found a single violation of the Civil Rights Act.
Most complaints have been rejected without an investigation, including several dismissed after the agency failed to meet its own deadlines for conducting investigations. Advocates have criticized investigations that have occurred for being inadequate, including an EPA probe at Arrowhead. The EPA closed the record for that investigation in March, but has yet to make any formal findings.
Lado said that, unlike other agencies such as the federal education and transportation departments, the EPA just doesn't have a culture of enforcing anti-discrimination measures and the Civil Rights Act. Last year, Lado and Earthjustice sued the EPA to attempt to force reforms in the program, citing five civil rights complaints that have gone unresolved for a decade or more, including a 2003 complaint filed by a Black community next to an expanding landfill in Tallassee, Alabama.
Under increasing public and legal pressure, EPA officials have promised to streamline the agency's civil rights program and proposed to change rules around dealing with complaints. If EPA investigators decide that ADEM did discriminate against the residents of Uniontown, then ADEM may be required to analyze the impacts of its permits based on race and other factors, or lose its federal funding. It would also be the first time that the government has admitted that racial discrimination exists in the permitting of landfills in Alabama or anywhere else.
LeFleur, however, told state officials that he expects the EPA to find his department to be in compliance and to dismiss the remaining complaints, just like it has in the past.
Meanwhile, the lawsuit against its core members has not stopped Black Belt Citizens from making posts to its Facebook page, including this recent video of Esther Calhoun visiting the cemetery near the landfill where her family members are buried.