The betrayal: How a lawyer, a lobbyist and a legislator waged war on an Alabama Superfund cleanup

For more than a century, those industrial plants had generated jobs — but also noxious emissions and waste. In 2009, the EPA found elevated levels of toxic chemicals, in some cases three times the amount considered dangerous enough to require immediate removal. In 2013 the agency notified Drummond, the coal company, and four other manufacturers nearby that they would have to spend tens of millions of dollars to dig up and replace the soil on hundreds of residential yards. David Roberson, Drummond’s vice president and top lobbyist, worried that it would cost his company $100 million or more.

Roberson and Joel Gilbert, a powerhouse lawyer with Balch & Bingham, had fought off environmental rules before. But for this campaign, they needed a public face, someone with credibility both with the state government in Montgomery and the black communities in north Birmingham.

Someone who could persuade the people living on contaminated land to protest not the pollution but the cleanup.

By early 2014, they had chosen Oliver L. Robinson Jr. (D), an African American state legislator and former University of Alabama at Birmingham basketball star.

But that was long before they all turned on one another. Before the guilty verdicts. Before the prison sentences that, so far, only one of them is serving.

The bribe

This tale of power, pollution and duplicity played out in Alabama’s poorest communities, in its executive suites and its storied courtrooms. It was gleaned from a review of thousands of pages of court documents and hours of interviews with people who witnessed or were embroiled in the drama, as well as coverage by an Alabama news organization, Al.com, that closely tracked the trial.

In the summer of 2014, Roberson the lobbyist and Robinson the legislator met over cheeseburgers at Billy’s sports bar out in the suburbs.

The men would reach an understanding about what needed to be done: Keep the EPA out of Birmingham’s backyards and stop the agency from enlarging the Superfund site, a federally designated area contaminated with hazardous waste and pollutants.

The stickier point was price. How much would Robinson charge to undertake a grass-roots campaign to get it done?

Everyone knew Robinson, the 6-foot-4-inch Birmingham native who led a thrilling Alabama-Birmingham team to the Elite 8 of the NCAA tournament. When he ran for office, he was elected in a landslide.

The lobbyist and his lawyer, Gilbert, were counting on Robinson’s charisma and connections in the community to fend off the EPA.

They needed a powerful message that would resonate with people who were used to losing. The logic was this: The EPA would set a struggling place even further on its heels. By digging up evidence of toxic chemicals, the government would drive down property values — the one asset left to many here. And the best way to stop it was to sign letters of protest to keep the agency’s workers off their property.

Robinson would canvass the neighborhoods to rally support. He’d also press the cause before two state environmental agencies.

All, of course, for a price.

Robinson initially wanted $10,000 a month.

By December, after haggling, his price had dropped.

“Joel, go back to Dave and the Drummond people and let them know that we will need $7,000 per month,” Robinson wrote on Dec. 11 in an email later divulged by federal prosecutors.

When Robinson told Gilbert that he was going to meet with a team of EPA officials the next day, Gilbert responded within 12 minutes. “Spoke to Drummond. They have approved your request for $7,000 a month,” Gilbert emailed. “Call me when you get a chance.”

The legislator had one more request: “Make payments to the Oliver Robinson Foundation.”

This was a fateful choice — and one they would regret.

It’s not unusual for a private corporation to pay a state legislator in Alabama. Robinson and his wife, for instance, had a communications firm with five clients. One was a bank that paid between $100,000 and $150,000 a year when Robinson was a member of the state House Financial Services Committee, according to his ethics filings. That raised eyebrows in one of the state’s leading news outlets, Al.com, but the Alabama ethics commission took no action.

But paying the foundation was different — and a way to conceal Drummond’s role, prosecutors would later charge.

Robinson had set up the foundation to promote financial literacy among low-income families and students. Every year, its Black Achievers Awards Gala was one of the highlights of the social and philanthropic calendar, and it buffed Robinson’s image.

As a philanthropic nonprofit, it wasn’t the right vehicle for a company seeking services for a fee. Robinson’s foundation was what the IRS calls a 501(c)(3) organization, and it was supposed to engage in religious, charitable, scientific or educational activities. It wasn’t supposed to take money from a company seeking to use his good name and public position to lobby for a private interest.

Yet Robinson wrote to Gilbert: “The foundation is best because all types of corporations support our foundation.”

The three men agreed on that and that the new contract would be “kept confidential.”

Roberson, the lobbyist, later said the work was in keeping with the foundation’s mission. “It was an outreach type of foundation, and that’s what we needed. They put people on the ground and did the work we wanted done,” he said. “The residents out there were getting so much misinformation.”

Anything to slow the EPA’s roll.

“The less remediation EPA did, the less those companies would have to reimburse,” said former federal judge U.W. Clemon, who worked with the north Birmingham communities after he retired from the bench.

Jay E. Town, the U.S. attorney for the Northern District of Alabama, would put it this way: “It’s cheaper to pay for a politician than it is to pay for an environmental cleanup.”

'An urban nightmare'

Ground zero in the plot was the Superfund site, just a 10-minute drive from the Balch & Bingham offices in downtown Birmingham. Homeowners such as Keisha Brown had long sensed that they lived on the front lines of an environmental disaster.

Her hair wrapped in a bun, Brown stood recently in front of a small white house with an aqua blue awning. Her grandfather bought the house 68 years ago when this was a thriving middle-class neighborhood.

Birmingham is set in a valley rich in raw materials, the city’s engine for more than a century. Trainloads of coal and iron fired the plants and jobs lured people — including sharecroppers from the countryside and immigrants from Europe — to the working-class neighborhoods.

But with time, it had devolved into what Brown called “an urban nightmare.” U.S. steel output began to dwindle, and people moved away. The Methodist church left. A handful of grocery stores closed. Bus service was discontinued. Some abandoned homes were demolished. Those left behind complained of soot.

Brown said that the nearby industrial plants spewed toxic chemicals she blamed for her respiratory problems and for driving away many of her neighbors.

Today, row on row of dilapidated housing marks the area as the rail cars rumble slowly by. Nearly 14,000 people live within a mile of the 35th Avenue Superfund site, one-third of them below the poverty line.

Robinson would need to urge people like Brown to say no to a chance to fix the root of their problems.

Drummond, a family-owned company, is also part of the Birmingham story. It was founded in 1935 by a coal miner who put three mules up as collateral for his first loan. Since then, the company has flourished, doing business in Japan and Colombia. In 1985, Drummond bought ABC Coke.

A coking plant heats coal to very high temperatures in closed oxygen-free ovens so the coal does not burn. The process creates pitch-black coke that is used to fuel the blast furnaces of nearby steel, cement and aluminum manufacturers.

Drummond’s coking operation had violated air pollution limits before the Superfund flap. In 2004, the Alabama Department of Environmental Management cited ABC Coke for allegedly exceeding the daily limits on the release of benzo(a)pyrene, a cancer-causing pollutant, 37 times.

By 2013 the EPA wanted the area cleaned up. The 1,099 soil samples it started testing in 2009 showed elevated levels of toxic chemicals — arsenic, lead and benzo(a)pyrene — in the yards of about a third of homes in northern Birmingham neighborhoods.

The agency wanted to take two steps. It would conduct tests to see whether it should extend the boundaries of the Superfund site to the nearby neighborhood of Inglenook and Tarrant, just over the Birmingham line. And it wanted to add the 35th Avenue Superfund site to the national priorities list (NPL), which would make it easier to hold companies liable for the cleanup.

Both steps would sharply increase remediation costs, but they could protect residents from some of the ongoing health effects of living near the industrial plants. And taxpayers wouldn’t have to foot the bill.

Roberson, a biologist by training who had once been the compliance chief for hazardous waste at the Alabama Department of Environmental Management, argued that the Drummond-owned ABC Coke facilities were a mile and a half away from the Superfund site and that airborne toxic pollution couldn’t float that far.

In a September 2013 letter, citing a “threat to public health and the environment,” the agency notified five companies, including Drummond, that they would need to share the cleanup costs. The money would pay for removing the toxic dirt and trucking in fresh soil, according to Franklin Hill, Superfund director for the EPA’s Region 4. The EPA said it would start cleaning up 52 properties.

That’s when Drummond hired Balch & Bingham.

The influence game

Gilbert was an old hand at the environmental influence game, and his law firm, Balch & Bingham, had been a political player in Alabama since 1922.

He was a lobbyist for the Business Alliance for Responsible Development (BARD), a front group with a wholesome-sounding name that business interests created to support development in an ecologically sensitive area.

Nelson Brooke, the Black Warrior Riverkeeper, part of a conservation network for the nation’s waterways, came to call Gilbert an “environmental hit man.”

Gilbert’s lawyer did not return calls or email inquiries for comment.

Drummond, too, had a formidable record as a lobbying force.

“The only time I can remember when Drummond got beat on something is when they wanted to mine property owned by the University of Alabama right on the edge of the Black Warrior River,” said Jack Drake, an Alabama civil rights and plaintiffs’ lawyer.

Then there were their political connections. Drummond and Balch & Bingham were two of the top three donors to the last two Senate campaigns of Jeff Sessions, later President Trump’s attorney general. Drummond also gave then-Alabama Attorney General Luther Strange $50,000 in campaign contributions.

To thwart the EPA, Gilbert and Roberson tapped their vast network — what one lawyer in a trial filing called “the standard playbook.”

Gilbert wrote or edited letters opposing the EPA that were signed by Sessions, Strange, Sen. Richard C. Shelby (R-Ala.), Gov. Robert J. Bentley and six members of the Alabama congressional delegation, according to evidence and testimony presented later in Gilbert’s criminal case.

He also drafted a letter for the superintendent of Tarrant schools to rescind the school board’s permission for the EPA to test soil samples.

Balch and Drummond also got the legislature behind them. Gilbert drafted a joint resolution urging the “overreaching” EPA to abandon its testing methods for airborne pollutants and keep northern Birmingham off the Superfund national priorities list. It said the EPA had “applied its enforcement authority arbitrarily and unfairly.” It passed by a voice vote.

The barrage was unexpected. The EPA seeks agreement — and a 10 percent contribution — from state governments for Superfund sites. Usually, states are happy to get federal money. Companies, fearful of the EPA’s power to triple fines, typically cooperate.

But in this instance, opposition was coming from everywhere. In Washington, the head of the EPA’s Superfund program met with Sessions staffers and others who argued that airborne emissions could not explain the contamination. And they questioned whether the EPA was pursuing a misguided case of “environmental justice” for the poor rather than acting on solid evidence of harm. (The Project on Government Oversight and Mother Jones have separately reported on this in detail.)

“I was surprised when I started getting letters from senators saying the state of Alabama would not move forward and support an NPL listing because it came with such force,” said Heather McTeer Toney, who was then the regional EPA administrator. Then came letters from congressmen and the governor.

“It was very clear that this was not going to be done easily,” she said.

The secret tapes

In his campaign, Robinson got a lot of help from Gilbert. It was Gilbert who had a firm attorney draft letters for residents to sign. And it was Gilbert who fed Robinson questions to ask when talking to EPA officials or public health activists. “Push them to tell why they think ABC Coke is responsible and, if so, do they have any proof?” Gilbert said in an email.

On Dec. 12, 2014, armed with his talking points, Robinson walked into the Westin hotel in downtown Birmingham to meet with EPA officials, led by Toney.

In a second-floor conference room, he pulled out his iPhone and secretly started recording.

He gave the recording to Gilbert to get the information “back to the people who wanted it.”

Later, he met with an attorney from GASP, an activist anti-pollution group. Gilbert sent Robinson an email with “Questions for Use in the GASP meeting.” Robinson recorded that, too. The tapes would help Gilbert anticipate arguments used against Drummond.

They were running out of time. As the deadline loomed for comments on the EPA’s national priorities proposal, Roberson emailed Gilbert that “Oliver needs to get some of the neighborhood officers to send letters [to the EPA] opposing the listing.”

Gilbert instructed one of Balch & Bingham’s new, bottom-rung lawyers to draft three versions of a “community” letter that Robinson would get residents to sign. Gilbert asked the associate to “dumb them down a bit” to make them sound more authentic and not like a “coordinated effort.”

Robinson paid an old friend to collect signed petitions against EPA action, yielding nearly 100 signatures. Brown wasn’t one of them.

“I do not support the EPA adding our community to the National Priorities List,” read one. “Doing so will only make things worse than they are already. Our homes are worth almost nothing now, and we still have to keep paying higher taxes on them.”

Appearing before state environmental regulators, Robinson said that if new areas were added to the Superfund site, it would hurt residents who are already “considered to live in a dump. And nothing can happen there until it’s cleaned up. And after that, it will take tremendous investment to get it to move forward.”

Robinson also reached out to his first campaign manager, Hezekiah Jackson, who was president of the Birmingham chapter of the NAACP. Robinson told him that EPA efforts to rope in several companies would lead to long litigation and only delay money flowing into cleanup efforts.

And Jackson believed him.

“I’ve always been an advocate of everybody in the area being relocated,” Jackson said. “I just don’t think the place can be cleaned up. It’s been more than 50 years.”

In October 2015, Robinson formed a group called Get Smart Tarrant and made his daughter Amanda, a freshly minted law school graduate, executive director. Jackson was brought on board, too. The group discouraged residents from letting the EPA take soil samples from their yards.

Gilbert and Roberson kept a close eye on the new campaign. Gilbert edited fliers Amanda distributed in Tarrant at places such as the Lily Baptist Church and the House of Prayer. And he reviewed the roadside signs: “Get Smart Tarrant. Don’t let EPA fool you!”

Busted

The Gilbert-Roberson-Robinson alliance had raised some alarms. As early as November 2014, Drummond CEO Mike Tracy asked in a meeting whether the work with Robinson was legal.

Tracy would later testify that Gilbert said he had checked the plan with Balch’s ethics experts and that community outreach through a foundation was “perfectly fine.”

It’s not clear, however, that Gilbert checked with Balch senior partners. He says he consulted briefly with one in December, but the partner later testified that he could not recall the exchange.

To cover payments to the foundation, Gilbert and Roberson set up a new group called Americans For Jobs and the Economy, bringing in not only Drummond but also other companies in the Superfund area, just as they had earlier with BARD. Balch & Bingham cut the checks to the Robinson foundation. The new group, with Roberson as its head, made payments to Balch. It was a way “of distancing” the companies from the arrangement, Roberson later told federal prosecutors.

The Balch billing department balked at instructions from Gilbert to scrub the Oliver Robinson Foundation’s name from certain invoices and list work as “community outreach” instead of consulting.

“I’m not sure why we cloak the reference in our invoice,” chief operating officer David Miceli wrote in a Sept. 22, 2015, email.

“You ever hear anything from Joel on this?” he asked in a later email flagging a $25,500 payment. The internal back and forth, documented in the criminal case, dragged on for months.

Balch & Bingham, which would not make anyone available for an interview for this article, has insisted that Gilbert, as a partner, acted alone and would not have raised any flags as he deposited $360,000 into the Robinson foundation account because the money went out at a moderate pace over many months.

Roberson later said that 21 Balch & Bingham attorneys “played at least some part” in the anti-EPA campaign built on Robinson’s efforts. But the indictment would name only one other defendant from the firm, and charges against him were dropped.

How it all came apart is a mystery. The assistant U.S. attorney wouldn’t say where the tip came from. But on Nov. 30, 2016, Robinson abruptly resigned his seat in the statehouse. He said he did so to avoid ethics conflicts for his daughter, who had just been offered a job in the governor’s legislative liaison office.

“Quitting a job like that . . . always portends something,” Al.com journalist John Archibald opined that day. He said the explanation “caused many in Birmingham to snort breakfast beverage through their noses.”

It was the Federal Bureau of Investigation that finally brought the scheme to its end.

In February 2017, its agents paid a visit to Robinson, looking into tax evasion charges; he had not paid taxes on the money he took from the foundation. Robinson made little effort to deny the accusations. Tears welled up in his eyes, an FBI report noted, and his lips quivered.

“I was lying to myself,” he said later, adding that he was more upset about having deceived his family than the prospect of going to jail. Asked whether the FBI had broken him, Robinson said, “I broke myself.”

'Not the way a crook operates'

On a mild, partly rainy day in June 2017, the U.S. attorney charged Robinson with receiving bribes, wire fraud and tax evasion for using $17,783 of campaign funds and at least $250,000 of foundation contributions for personal expenditures. Robinson faced a sentence of up to 100 years in jail and hundreds of thousands of dollars or more in penalties.

And then the state lawmaker who had betrayed his constituents and family turned on the people who had paid him to stop the EPA. He entered a guilty plea and agreed to testify for the government.

By September, Gilbert and Roberson were charged with bribery, conspiracy, wire fraud and money laundering.

“This case gets at the heart of public corruption in Alabama,” acting U.S. attorney Robert O. Posey said when the charges were filed. “Well-funded special interests offer irresistible inducements to public officials. In exchange, the officials represent the interests of those who pay rather than the interests of those who vote.”

Gilbert’s lawyer sought to downplay his client’s role. The money paid to the foundation was no lump sum but made in installments, he argued: “That’s not the way a crook operates.”

Roberson’s lawyer said that Robinson had not acted in his capacity as an elected official and was not paid “to use the powers of his office” and therefore wasn’t bribed. Besides, he said, Roberson relied on Gilbert and Balch to say whether something illegal was going on.

But Robinson’s own testimony and a trail of emails and invoices proved a potent combination at the trial.

Emails showed that Gilbert had taken precautions. He urged Amanda Robinson to convert the letters he edited into PDFs “so no one, ie., a third party, can see the metadata should they receive it via electronically.”

Prosecutors later told the jury that Gilbert was hiding a crime — evidence of corrupt intent.

Gilbert and Roberson were convicted of all federal criminal charges — conspiracy, bribery, honest services wire fraud and money laundering — in July 2018. In October, Gilbert was sentenced to five years in prison, Roberson two and a half years and Robinson 33 months.

Immediately, Balch & Bingham sought to distance the firm from Gilbert, who lost his partnership. But with the hours he logged on this case, Gilbert’s earnings from the firm had gone from $298,000 in 2014 to $466,000 in 2016, according to the news site Al.com.

“The jury determined that Joel Gilbert engaged in conduct that is contrary to the standards to which each of us at Balch & Bingham is committed and expected to uphold,” Balch & Bingham managing partner M. Stanford Blanton said in a statement.

Drummond initially stuck by Roberson, its executive. “While we respect the judicial process, we consider David to be a man of integrity who would not knowingly engage in wrongdoing,” the company said in a statement when he was convicted.

Then in February, Roberson was summoned to a meeting with the company’s CEO and chief legal officer. Roberson, who earned $300,000 a year, had expected to discuss a bonus.

Instead, he was fired. Tracy, the CEO, said it was “one of the toughest things ever” and offered to pay him a lump sum of about half a year’s salary. Roberson said he had “worked hard for this company” and was “so disappointed.”

On March 17, Roberson filed a $50 million lawsuit against Drummond and Balch & Bingham, claiming that they misled him and “destroyed” his reputation and that he had been “humiliated.” He said Drummond’s general counsel had normally signed checks but asked Roberson to sign the ones to reimburse Balch for Robinson’s grass-roots campaign. Now Roberson said he felt like “the fall guy.”

“Joel was a friend,” Roberson said in an interview with The Washington Post. “I don’t consider him much of a friend now for doing what he’s done to me.”

Roberson was fired immediately after the end of the statute of limitations for legal malpractice, which his lawyer said was an effort to shield the company.

Drummond wouldn’t comment, and Julie Wall, director of external affairs at Balch & Bingham, said in an email: “We believe the claims are without merit and we will have no further comment at this time.” The company has asked the court to dismiss Roberson’s lawsuit.

Gilbert and Roberson remain free pending the outcome of their appeals.

Only Robinson is in jail. He said he felt fortunate that his sentence wasn’t longer. He arrived for his sentencing in September with a check for $169,151, the full amount of restitution. His “life’s savings,” his lawyer said.

It was a steep fall for Robinson, from statewide basketball hero to discredited dissembler.

“I was bribed, and I sold out my community,” Robinson testified in the Gilbert trial.

And all for about $260,000, Gilbert’s lawyer noted.

“You sold out the people in your community and everything that you had worked for your adult life for this chump change?” he said.

“Now that I look back on it, I sure did,” a downcast Robinson replied.

The cleanup

The plot that began that autumn day continues to take surprising turns, shaking the state’s political and corporate establishment. It’s also illustrative of the grave challenge that remains to clean up the environmental ruin that is a legacy of America’s industrial age.

A short distance and a world away from Balch & Bingham’s offices and the federal courthouse, the EPA has been gradually cleaning up some of the toxic waste in the 35th Avenue Superfund site.

“Because of deadly pollutants that have contaminated our building and our grounds, we have moved,” a sign proclaimed in late November in front of the red brick Friendship Baptist Church of Collegeville, one of the three neighborhoods belonging to the Superfund site.

In some places, yards are surrounded with plastic mesh where toxic topsoil has been removed. The old Carver High School in the Collegeville neighborhood has become an EPA staging ground. It is fenced in with signs warning: “No trespassing.” In back of the school, a sign says “Superfund cleanup EPA,” and piles of new dirt lie underneath white tarps waiting to replace the contaminated soil that is being taken to a landfill for hazardous materials.

Yet one cruel irony of the Birmingham tale is that Gilbert and Roberson succeeded in the narrow sense. The EPA has not expanded the Superfund site, and it has not placed the 35th Avenue neighborhoods on the national priorities list.

So far, none of the five companies alleged by the EPA to be responsible for remediation — Drummond’s ABC Coke, ERP Coke (formerly Walter Coke), U.S. Pipe, Alagasco and KMAC — has shouldered any of the costs, an EPA official said in an interview. That job has been left to U.S. taxpayers.

The EPA’s reason for not unilaterally adding the site to the national priorities list is that there is not enough Superfund money to cover the costs of cleaning up the 1,337 existing sites now, including a dozen in Alabama.

“We’ll have to wait longer about the NPL listing,” said George Martin, one of the assistant U.S. attorneys who prosecuted Gilbert and Roberson. “The national priorities list would have given access to a greater pot of money that would have allowed a quicker fix.”

The EPA rarely spends more than a few hundred thousand dollars of government funds on a site, but as of Dec. 14, it had spent $25.6 million and removed 56,000 tons of contaminated soil. In some cases, the EPA dug a foot deep.

The excavations have revealed soil laden with lead, arsenic and the carcinogenic benzo(a)pyrene. But there are different toxic concentrations at different properties, an EPA official said. After all the controversy over whether toxic chemicals can travel by air, the agency now believes that most cases of contamination came from materials that were trucked in decades ago and deposited in this low-lying area to prevent flooding.

Residents say that they can see pollution settling from the air on their rooftops, cars and clothes and that it is causing cancer and asthma — if only someone studied it. So far, no one has.

Superfund cleanups generally reduce the incidence of congenital anomalies in infants of mothers living within 1,250 yards of a site by roughly 20 to 25 percent, academic research has shown.

The final casualty of the Superfund fight has been the tenor of politics here. Under fire from fellow NAACP officials, Robinson’s first campaign manager and Get Smart associate Hezekiah Jackson quit his position as head of the group’s local chapter.

“The whole process has been very disappointing to me,” said Clemon, the retired federal judge. “The trust that the black community has posed in its elected representatives has been breached in a very serious way.”

From her front yard, Keisha Brown can see the unsightly berms of mineral wool, a byproduct of the coking process. And she can feel the rail cars as they rumble into view and stop before the entrance to the ERP Coke plant.

Robinson’s betrayal has contributed to her sense of abandonment and anger.

“I put them, the leaders, along with the polluters,” Brown said. “The only difference is the polluters have to get a permit to release harmful chemicals in our bodies.”