In December 2008, 5.4 million cubic yards of coal ash were spilled from a landfill in Tennessee following a catastrophic dike failure. The spill contaminated the land, rivers, reservoirs, and shore areas surrounding the landfill with metals such as arsenic – a known human carcinogen – and lead, and caused the Environmental Protection Agency (“EPA”) to conclude that there was “an imminent and substantial endangerment to the public health.” In July 2009, the EPA approved a plan to transport the “time critical” coal ash from the defunct Tennessee facility to the Arrowhead Landfill in Uniontown, Alabama.

The plaintiffs in this case are two corporations that own and operate the Arrowhead Landfill. The defendants are the officers of an activist group called Black Belt Citizens Fighting for Health and Justice. The group was formed to raise awareness about environmental and racial justice issues in Uniontown, and has been particularly active in challenging the operation of the plaintiffs’ coal ash landfill. Their activism surrounding this issue garnered national media attention in the middle of last year.

The plaintiffs allege that beginning in October 2015, the defendants published various defamatory statements about them to the Black Belt website and Facebook page. The vast majority of the statements at issue, however, are facially non-actionable because they assert opinions. Furthermore, to the extent any statements are provably false, we are confident that they were not made with the malice required for claims brought by limited- or general-purpose public figures such as the plaintiff-corporations in this case. The following are a few examples of statements that form the basis for the claims:

  • “The landfill’s pollution problems are influencing the decrease of property values while increasing health concerns.”
  • “[The landfill] affected our everyday life.”
  • “[W]e all should have the right to clean air and clean water.”
  • “[Y]ou can’t walk outside. And you can not breathe. I mean, you are like in prison. I mean, its like all your freedom is gone.”
  • “The toxic . . . Landfill continues to hurt/violate/oppress the community with the desecration of the adjacent cemetery, the constant run-off of contaminated water, the bad odors and smells, and the depression of property value.”

This case presents a stark and disturbing narrative that makes this case important because of its free speech and racial justice implications. Uniontown is a predominantly Black and badly impoverished city (per capita annual income is just above $8,000), which the plaintiffs have strategically chosen for the site of a toxic landfill. And, as the community has sought to unite and speak out in opposition to racial and environmental injustice, the plaintiffs have attempted to silence them by filing a meritless defamation lawsuit. 

We represent the four individual defendants and filed a motion to dismiss. The Magistrate Judge issued her report and recommendations on October 13, 2016, recommending that the motion be granted but with limited leave to amend the complaint to assert libel and slander on various statements regarding the deliberate discharge of toxic materials. All other statements were held not to be actionable and the companies were held to be public figures who must allege and prove actual malice. Green Group Holdings v. Schaeffer, 2016 WL 6023841 (S.D. Ala. Oct. 13, 2016).

Following the entry of the order, we were able to negotiate a settlement of the case with a dismissal of all claims, with prejudice, a joint statement of the parties, and advance notice to the public of plans to take in more hazardous waste.