Birmingham strikes back escalating court fight over water works
Birmingham city leaders have revised their federal lawsuit challenging the state law that wrested control of the Birmingham Water Works from local officials.
Birmingham city attorneys filed an amended complaint Friday on behalf of Mayor Randall Woodfin and members of the city council.
In part, the complaint adds additional defendants, including the specific names of the new regional water board members and the groups that appointed them. Other defendants include Gov. Kay Ivey, State Attorney General Steve Marshall and Lt. Governor Will Ainsworth.
“The city has filed an amended complaint related to the Water Works lawsuit and will await further court action,” City Attorney Nicole King, wrote in a brief statement late Friday.
The city maintains that state action is illegal. It reconfigures the utility’s board to include mostly suburban members from Jefferson County and surrounding counties with just two from Birmingham.
Birmingham, a predominantly Black city, contends the action is driven by race.
While the water works services a five-county area, 92 percent of the customers live in Jefferson County and 44 percent of them live within the Birmingham city limits.
The new board configuration with just two members from Birmingham does not represent that population, Birmingham argues in its lawsuit.
City attorneys also claim the state legislature violated Alabama law by ignoring binding terms of the water works’ articles of incorporation. The city did not agree to the contract changes, Birmingham lawyers said.
“Under Alabama law, the Birmingham City Council must consent to any amendments to the Water Works’ articles of incorporation,” the lawsuit states. “The 1999 Articles of the Water Works are still enforceable because no ex post facto law can change the charter of a public non-municipal corporation.”
The city also claims that the new law violates an existing agreement by ending the annual franchise fees the water works pays to Birmingham for operating on the city’s public rights of way.
Further, the state law is “discriminatory on its face,” the city suit claims, because it violates the Equal Protection Clause of the United States Constitution by diluting the participation of a majority of Black ratepayers and giving unequal representation to areas that are mostly white.
“True to Alabama legislative history, the selection scheme mandated by Act 2025-297 deprives the Ratepayer Plaintiffs of the effective and meaningful participation in the affairs of the Water Works by diluting their ability to select representation to the Water Works,” the lawsuit states.
The city also takes issue with the state’s justification for the takeover and notes the utility’s strong credit rating.
“The Alabama legislature has not sought to restructure or take over other public utility companies with credit ratings equal to or lower than that of the State of Alabama and the Water Works,” according to the lawsuit.
Also, the city disputes comparisons in the text of the law between the Birmingham water works and other utilities that have suffered major issues from mismanagement. The comparison is not accurate or fair to Birmingham, the city maintains.
Roberts, in an earlier interview with AL.com, said his bill was not punitive or any attempt to take anything away. Instead, he said it was intended to resolve long-standing problems at the utility.
For example, he called the water works’ rates an impediment to economic development in the region. He also said he was concerned about needed pipe maintenance and replacement while at the same time the utility spends ratepayer money on lawyers, lobbyists and marketing firms.
“So goes Birmingham, so goes the state,” Roberts told AL.com in April before the bill passed. “We don’t want to become a California. We don’t want to become a Detroit, Michigan. We don’t want to become a Jackson, Mississippi. We don’t want to become a Richmond, Virginia. I have grave concerns with the way things are going.”
Speaking during the Gary Richardson Morning Show on WJLD radio last month, Woodfin said lawmakers gained support by exaggerating issues of corruption and mismanagement and played on racial stereotypes by comparing the system to Jackson, Miss. and Flint, Mich.
“I take offense because that’s racist on its face because those are two majority-minority cities,” he said. “Nothing is wrong with our water.”
Woodfin admitted to complicated feelings about the utility. Still, he said those issues did not justify the state’s action.
“I feel the same way that the average ratepayer feels. I don’t like the water works,” he said. “My bills have been wrong as well. But two wrongs don’t make a right. What happened in Montgomery, what they did is wrong. It is a taking, and they did it with no remorse, they did it full of lies.”
As of publication, the state has not filed a response to the amended complaint.