Riverkeeper's David Whiteside: The making of an environmental activist

Mar. 6—In first grade, David Whiteside — now 43 and executive director of the Decatur-based nonprofit Tennessee Riverkeeper — was engaged in a class discussion triggered by a Weekly Reader article about pollution.

"We talked about it for an hour or two and I was very passionate in the class. I remember this vividly: The teacher was like, 'We're not going to solve this problem. Let's move on.' I was very upset about that. I said, 'Hold on. What do you mean we're not going to solve this problem? This is terrible. We've got to figure it out.'"

So began Whiteside's career as an environmental activist, a career that recently has been pivotal in a 3M Co. settlement over dumped toxins valued at hundreds of millions of dollars, an ongoing $165 million project by Decatur Utilities to reduce sewer overflows by replacing 1 million feet of sewer pipe, dramatic environmental concessions by Mazda Toyota Manufacturing and a pending sewer-overflow lawsuit against Hartselle Utilities.

First grader Whiteside spoke after school with his parents about his frustration that a problem that had awoken his passions could be casually dismissed as unsolvable.

"They said, 'That's what your godfather does. You should talk to him,'" Whiteside recalls.

His godfather is environmental lawyer Robert F. Kennedy Jr., son of the former U.S. attorney general and senator and nephew of the former president. Kennedy lived with Whiteside's family for three years in the 1970s, and was present in the hospital at Whiteside's birth, as he wrote a biography of Whiteside's great uncle, civil rights icon Judge Frank M. Johnson. Kennedy is a founder of Waterkeeper Alliance, an umbrella organization that now includes 350 nonprofits including Tennessee Riverkeeper.

In pondering the influences that led him to found Black Warrior Riverkeeper in 2001 and Tennessee Riverkeeper in 2009, Decatur resident Whiteside points at the influence of his godfather. He also points to his maternal ancestors, including Johnson. His ancestors were at Looney's Tavern in 1861 when Winston County declared neutrality rather than join the Confederacy. Later generations were involved in the civil rights movement, often at high cost. His relatives had crosses burned in their yard, and before her death his mother recalled the constant presence of the FBI to protect the family.

"Whenever I think I have it tough here in Decatur, fighting against 3M and pollution, I just think about that," Whiteside said. "I've never come home to a cross burning in my yard or the threat of a firebomb."

Family legacy

Whiteside frequently mentions what he views as his family legacy, a legacy he sees as epitomized by his great uncle.

Johnson, born in Winston County, was a federal district judge from 1955 to 1979, when he became a federal appellate judge. In 1956 he ruled in favor of Rosa Parks, striking down a Montgomery ordinance requiring Blacks to sit at the back of the bus. In the early 1960s he ordered the desegregation of bus depots and ordered Montgomery police and the Ku Klux Klan to end the harassment and beating of Freedom Riders seeking to integrate bus travel. In 1965, Johnson blocked Gov. George Wallace's efforts to prevent the Selma-to-Montgomery march.

Another influence was Whiteside's father, a lawyer who died in a car wreck in 2001, just after Whiteside founded Black Warrior Riverkeeper.

"One of the last things he said to me is he was proud of me for finding my passion, that most people live their whole life without finding their passion," said Whiteside, emotionally describing his father's death as "the hardest thing I've ever had to deal with in my life."

He received comfort from Kennedy, who was only 14 in 1968 when his father was assassinated.

"Bobby Kennedy Jr. was there for me immediately. He's filled that void in a way. Not only as a mentor for environmental law and the work that I do but spiritually as my godfather and also as a father figure who lost his father suddenly and abruptly as a teenager too," Whiteside said. "He is in many ways not just a mentor to me. He's like a third parent as well."

Tennessee Riverkeeper has two full-time staff, including Whiteside, two part-time staff and a nine-member board. It has an annual budget in fiscal 2022 of $215,000, with many of its legal fees being paid by defendants it sues. It frequently receives donated funds directly from prominent musicians Whiteside knows, or indirectly from them through fundraisers organized by Whiteside, who worked at MTV News as an election reporter and producer in the two years before the 2008 presidential election.

Whiteside said he declined a salary the first two years after Tennessee Riverkeeper began and has averaged an annual salary of $32,500 over his dozen years as executive director, but now makes $60,000 per year.

While Whiteside and his staff are active in the manual work of cleaning up waterways in the river's watershed, they are best known for litigation.

Between 2010 and 2020, Tennessee Riverkeeper has filed 12 federal lawsuits, including five in Alabama and seven in Tennessee, and multiple state court cases in the two states. It has filed many more notices of intent to sue, a requirement under some federal environmental laws, which often prompt enforcement actions by the Alabama Department of Environmental Management.

Tennessee Riverkeeper in 2019 filed one of the notices threatening a federal suit against Decatur Utilities for millions of gallons of sewer overflows. The state Attorney General's Office, on behalf of ADEM, sued DU in Morgan County Circuit Court within 60 days of the notice, which had the legal effect of blocking Riverkeeper's planned federal lawsuit. The nonprofit intervened in the Morgan County case, and DU in 2021 agreed to a $123,000 civil penalty in a settlement that referenced its plans to replace 1 million feet of sewer pipe in 10 years. DU financed that accelerated replacement plan with a rate increase.

Tennessee Riverkeeper joined with the Center for Biological Diversity in litigation against Mazda Toyota, prompting a December 2018 settlement with the manufacturer. A primary issue in the legal battle was protection of the spring pygmy sunfish, a nearly extinct species that lives in the Beaverdam Creek system next to the Limestone County auto plant.

"In terms of public perception, that was one of the most controversial things we've ever done," Whiteside said. "We ended up saving the endangered spring pygmy sunfish and its habitat. We secured over a thousand acres for a conservation easement in an industrialized part of Huntsville that's about to become more industrialized."

The pushback from residents who feared the litigation would prevent or delay an industry that was bringing 4,000 jobs to the area was enormous.

"People were like, 'Who cares about that fish? I've never seen it before.' Or, 'Where I come from we call that fish bait.' Or, 'Y'all are the only ones that care about that stupid fish,'" Whiteside recalls. "If you go to what the Bible says, we should be stewards of creation. Who are we to say that this living creature that God gave us as part of his creation is something where we can say, 'We don't need that. Let's just exterminate it forever.'"

3M litigation

In 2016, Tennessee Riverkeeper filed a federal suit against 3M Co., Daikin and other Decatur industries, using federal law to attack the same problem that a previously filed state court lawsuit, called the St. John case, was targeting: the proliferation of PFAS, likely carcinogenic chemicals, in the waterways and soil of Morgan and Lawrence counties. The lawsuits brought 3M to the table and likely paved the way to a settlement last year in which 3M agreed to pay $98.4 million to the city of Decatur, Decatur Utilities and Morgan County.

3M has reached a tentative settlement of the Tennessee Riverkeeper and St. John lawsuits in which the company agrees to monitor and remediate PFAS pollution, but has specified it will only finalize the Riverkeeper settlement if the court approves settlement of the St. John class action lawsuit. Retired Morgan County Circuit Judge Glenn Thompson will hold a hearing on whether to approve the St. John settlement April 21.

A potential obstacle to approval of the class action settlement is that many of the terms are similar to a consent order entered into between 3M and ADEM in 2020. The Tennessee Riverkeeper settlement — under which 3M would pay a statutory fee of $1.09 million to the nonprofit's lawyers in the litigation and another $2.5 million for Riverkeeper's future legal and expert fees in monitoring 3M's cleanup effort — likewise overlaps significantly with the ADEM consent order. Both the St. John and Riverkeeper lawyers stress that the ADEM order simply memorialized settlement negotiations in the lawsuits that were nearing a conclusion.

It's a common tension between ADEM and Riverkeeper organizations. Whiteside views ADEM as "the bottom of the barrel — they're here to manage business, not protect the environment."

"We had 3M against the ropes after years of litigation, and suddenly ADEM comes in when they weren't supposed to," Whiteside says of the July 2020 consent order, entered four years after Riverkeeper filed suit.

Lance LeFleur, director of ADEM, sees it differently.

"I know David Whiteside has been working on 3M and the PFAS issue," he said, noting that ADEM began negotiating with 3M about 1 1/2 years before finalizing the consent order. "They have whatever lawsuits they've filed. Much of those lawsuits are lifting things from our consent order with 3M. So they're teeing off of that," he said. "Much of the watchdog group's activities occurred after we had come to a meeting of the minds with 3M."

LeFleur said he welcomes citizen involvement in environmental matters. He's a bit more circumspect about his view of the Riverkeeper organizations.

"My personal view is that if you've made yourself the executive director of an organization and you want people to be active in it, you have to have an issue," he said.

Asked to elaborate, he said, "I think they can be valuable assets for our communities, but they don't have oversight and that can be problematic.

"They undermine the public's confidence in the department."

LeFleur also expressed frustration that citizens' environmental complaints sometimes go to Riverkeeper organizations rather than ADEM.

"The Riverkeeper organization won't pass that along to ADEM, but rather goes to the newspaper or media and highlights the complaint and we never have an opportunity to hear the complaint," he said.

Whiteside views highlighting environmental problems as a central role of Tennessee Riverkeeper.

"Our spotlight is bright and powerful, and that is one of the best things we can do," he said. "If people don't know pollution exists, it's very hard to clean it up."

Whiteside has known Nelson Brooke, who works at Black Warrior Riverkeeper, since they were in school together at Mountain Brook Elementary. Both developed an early passion for the environment, and when Whiteside was executive director of Black Warrior, he hired Brooke.

'Paradigm shift'

Brooke and Whiteside share a common disdain for public corporations, which they believe are so focused on shareholder profit that they do the bare legal minimum or often less to protect the environment. Brooke, like Whiteside, also appears to be impervious to criticism of their environmental activism, even when they are accused of being job killers.

"It's expected that there will be criticism because we're pushing for a paradigm shift and we're going up against very powerful polluting interests that have a lot of money and political sway," Brooke said. "They're used to getting their way. Polluting and making money off polluting is just the status quo in Alabama. What keeps us going, what motivates us, is just a strong passion and a belief in the importance of making Alabama a better place."

He said the reality is that if environmental laws were rigorously followed corporations would hire more employees, because those employees would be necessary for ensuring environmental compliance.

"We're undeterred by all the attacks because it's simply a profit motive — throwing out a barrage of insults to mislead the public and to steer the public's attention away from what's really going on, which is just unfettered profit motive and greed in the guise of economic growth," Brooke said.

Mark Martin co-founded Tennessee Riverkeeper with Whiteside and is its prosecuting attorney. He said they are used to the attacks. "We know that we're doing something good for the community and actually something good for many of the people that are complaining."

Huntsville lawyer and six-year Tennessee Riverkeeper board member Doug Martinson said Whiteside's intensity comes through in board meetings.

"He knows when to push," Martinson said. "He expects a lot out of people and people respond to that because it's really a bigger cause than all of us. He needs that drive and determination to push things through and get things done."

Brooke said Whiteside brings that intensity to every issue.

"David is an incredibly passionate person when he gets into something, whether it's music or pinball or Riverkeeping. He gives 120%," Brooke said. "He has that intense personality and energy around him. When he's talking about what he's passionate about, that's not lost on anybody in the room.

"And it's pretty infectious. He can really bring people into the cause and encourage other people to become passionate about something that maybe they haven't really thought that much about."

Whiteside does not dispute his intensity on environmental issues, and hints that it may at times go too far.

"I have a lot of energy and I try to exercise in some aggressive level every single day, probably to a fault. I take out a lot of this frustration and anger in the gym or when I run or ride a bike. I'm constantly thinking about these issues and how to solve them, but there's something that happens to me when I'm working out. It alleviates the frustrations and uplifts me at the same time," he said. "I'm uplifted by action and exercise and being surrounded by amazing friends."

Whiteside is driven not just by his passion for the environment, but by a family legacy that he views as pushing him forward.

"I go back to my maternal ancestors and seceding from the Confederacy and fighting George Wallace and Bull Connor," he reflects. "I feel like I wouldn't be living up to my destiny if I wasn't banging my head up against Southern injustice and rocking the boat a little bit."

— eric@decaturdaily.com or 256-340-2435. Twitter @DD_Fleischauer.