Birmingham superfund scam extends well beyond federal courtroom

 

 

By Josh Moon

A scam took place in Birmingham. It involved an EPA superfund site. It involved political corruption. It involved poor, mostly black people getting the absolute shaft by the people who swore oaths to protect them.

   No, this scam isn’t part of the ongoing Oliver Robinson federal corruption trial.

It is very specifically not part of that trial.

   Because that’s the scam. That only Robinson and three others are being shamed for their abhorrent actions.

   It’s so absurd, it’s laughable.

I’ve followed along with this case since the beginning — pulling court filings, talking to those involved, talking to people on the fringes, discussing it with lawyers and former prosecutors. I’ve also followed the work of the reporters — mainly al.com’s Kyle Whitmire and John Archibald — who have been reporting this story on a daily basis.

   If you’ve somehow missed what’s happening there, here’s the gist: The EPA discovered massive, people-killing pollution in the ground in north Birmingham, allegedly from decades of pollution from nearby coal plants. The EPA was starting a cleanup project, which it planned to force the coal companies to pay for, and was looking to designate the site a “superfund site.” Doing so would’ve expanded their testing and put coal companies on the hook for millions more in cleanup.

Drummond Coal, one of the biggest coal producers in the country, was particularly annoyed by this. So, working through its lawfirm, Balch & Bingham, Drummond (allegedly) bribed former state Rep. Oliver Robinson to fight the superfund designation both in the Legislature and in the affected neighborhoods.

   At least, that’s the story if you believe what the U.S. Attorney’s Office in Birmingham is pushing.

   In reality, as we know from the court evidence in this case, that’s far, far, far from all that was happening. And Robinson, Balch attorneys Joel Gilbert and Steve McKinney and Drummond vice president David Roberson — the three men alleged to have bribed Robinson — are far from the only people to have dirty hands in this.

   Here’s what we know for certain: The Balch & Bingham law firm was producing documents on behalf of half the elected people in Alabama, and all of those documents were fighting the evil EPA, which had the gall to want to come into Alabama and stop poor black people from dying from pollution cancer.

   I’m not exaggerating this.

   We know these things to be true. We know it because most of our elected officials are idiots, and because Balch was producing so many pre-written letters it made mistakes, so there’s stone cold hard evidence that Balch wrote letters that then-AG Luther Strange sent to the EPA. And wrote a whole resolution that our entire state Legislature PASSED! And wrote more letters that Robinson and other elected officials coerced affected citizens to sign.

   It didn’t stop there, either. Some of Drummond’s business partners and financial partners aided it and other coal companies in the area, contributing millions more to this scam.

But for right now, I want you to think about only the most egregious sellout.

   Seriously. Take a moment and really think about the details of this: There is an area of this state filled with people. That area, over the course of decades, has become polluted to the point that people — elderly people, children, preachers and sinners and Christians and good and decent folks — are dying early and falling sick more often.

   A federal agency runs tests that conclusively prove this pollution is present. It believes the polluters are nearby multi-million dollar companies.

   Instead of paying what would’ve amounted to a fraction of its annual profits to clean up the mess it made, Drummond Coal, one of the alleged polluters, gets its high-powered law firm to fight it. That firm draws up a resolution against the EPA.

   A resolution against those poor, sick people in Birmingham. Against everything that is good and decent and holy.

   And a powerful state senator, Jabo Waggoner, sponsors it. And both houses pass it.    And the governor signs it.

   Now, most of these lawmakers — as usual — had no idea what they were voting on. But that doesn’t matter. Because what they passed sent a message to the poor people of Birmingham. It made it easier to sell them out.

   So, yeah, there was a scam in north Birmingham. But don’t you for a second believe the perpetrators are limited to the people in that federal courtroom.

Brasher not fit to be a federal judge

 

 

By Josh Moon

One of the dumbest legal conversations I ever had with anyone in Alabama state government was with someone who is currently on the verge of landing a lifetime federal judgeship — one of the most coveted and important positions in the U.S. justice system.

    The conversation, like most of my legal conversations, involved gambling. Two gambling proposals had been put forth by the Alabama Legislature, and the Alabama Attorney General’s Office had just issued a statement supporting one over the other. The statement was confusing and incorrect in its assessment of the applicable laws — specifically, the AG’s office had misinterpreted Indian gaming laws.

   So, I called to ask about the statement and the mistakes.

   On the other end of the phone was Alabama’s Solicitor General, Andrew Brasher — the same man the Trump administration has now nominated to serve as a federal judge in Alabama’s Middle District.

   For the better part of 15 minutes, Brasher argued with me about the laws. I won’t get too deep into the weeds of it all, but the confusion on his part involved the requirements of states and tribes entering into Class III gaming compacts.

   Now, my legal expertise would typically fill a medicine cup. But inside that cup would be Alabama and tribal gaming laws. And I know those laws because some of the best legal minds in America have explained them to me during the course of writing numerous stories.

   Brasher was wrong. But instead of admitting it, he challenged me to provide him the relevant statutes. I did. He was still wrong.

But instead of admitting the mistake and retracting the statement the AG’s office released, the response back was: “We believe it’s complicated.”

   Quite the legal ruling.

   To put that another way, the response was: We have a conclusion that we want to reach and we will twist the laws any way we have to in order to get there.

And that, in a nutshell, is why Andrew Brasher shouldn’t be anywhere near a federal bench.

   Whether it’s defending bogus press statements or wasting taxpayer money on disgraced “expert” witnesses or utilizing junk science to push a political position, Brasher’s legal resume is chock full of examples of him choosing politics over law.

   It’s so bad that on Friday the Leadership Conference on Civil and Human Rights wrote to the Senate Judiciary Committee tasked with approving Brasher’s nomination urging it to oppose him. The lengthy letter cited numerous examples of Brasher submitting briefs or making arguments in court that were roundly rejected by the U.S. Supreme Court and other federal courts.

   Among other ludicrous arguments, Brasher has argued that … there was no racial gerrymandering in Alabama redistricting plan (the Supreme Court disagreed), demanding proof of citizenship on a voter registration card was legal (the Supreme Court disagreed), that only straight people should be allowed to adopt (the Supreme Court disagreed) and a fetus should granted an attorney.

There’s also this little nugget: During his confirmation hearing, Brasher refused to say that Brown v. Board of Ed. was correctly decided. Because, you know, who is he to say — a judge or something?

   But probably the best summation of Brasher’s politically-driven career as an ideological prosecutor in Alabama came during a federal trial over Alabama’s restrictive laws on abortion clinics — laws that would have certainly forced most or all of the clinics to close. Unable to locate credible witnesses — medical doctors, psychologists, psychiatrists, etc. — who would speak on the state’s side, Brasher and the AG’s office trotted out the paid stooges.

   Four “experts” were paid more than $300,000 to testify on the state’s behalf. They were so bad that the judge in the case all but openly mocked them, and things became so bad that at one point, while questioning his witnesses, Brasher began to bang his own head on the wooden lectern.

   That’s what happens when you choose politics over law in the courtroom. The system isn’t built to handle it. Things go awry. Justice falters.

   And that’s what you risk by approving Brasher.

The BCA mess isn’t difficult to unravel

 

 

By Josh Moon

It’s been a rough week for the Business Council of Alabama. The top lobbyist group in the state has been decimated by big-name defections. It started with Alabama Power and PowerSouth. Then Regions Bank. Then Blue Cross Blue Shield of Alabama. And now Protective Life Insurance. And there are strong rumors that Drummond Coal and Thompson Caterpillar are soon to follow.

     All of those companies mentioned have expressed concerns — either while announcing their departure or while threatening to leave — over BCA CEO Bill Canary.

They felt Canary wasn’t getting the job done. They wanted him out. They wanted him out now.

     The BCA board, led by Perry Hand, tried to block that. For reasons that are both dumb and seemingly personally beneficial to Hand and his company, Volkert Construction.

     And now there is debate in political circles over who’s right, who’s wrong and what it all means.

     On the first two, there should be no debate. And anyone who is honest and who has spent an hour around the State House over the last two years knows it.

     Alabama Power and these other major companies didn’t randomly decide one day that they didn’t like Canary’s suits and wanted him fired. They took a look at the scoreboard. And it clearly showed that Canary was getting killed.

     And by that, I mean he had lost his influence in the State House. Most of it he squandered away by using too much stick and not enough carrot when dealing with lawmakers. He tried to bully his way around and such tactics quickly wear thin among grown people.

The companies contributing dues to the BCA do so for one purpose: for that organization to promote their best interest and help push business-friendly ideas in the state legislature.

That’s the primary benefit of the BCA’s existence.

     If the guy the BCA is paying big dollars to push that agenda is so disliked that state lawmakers are voting against BCA-backed legislation just to spite him, that’s what we call a gots-to-go situation.

     That was 100-percent taking place with Canary in the State House.

     Two years ago, the BCA was shut out on its top-priority bills. This past session, they got one — an unpopular weakening of state ethics laws that likely cost several lawmakers their seats — and lost their biggest.

     Privately, Republican lawmakers, who once happily strolled into the building and voted for anything BCA sponsored, were so disenchanted with Canary and BCA that they told me they would vote against anything the organization backed. They were tired of being threatened, they said. And they were tired of Canary telling them what to do instead of working with them.

     If you’re Alabama Power or Regions Bank or BCBS, and you’re dumping six figures annually into this association in order to promote your interests at the State House, you can’t have that.

     And it’s that simple.

     What’s hilarious to me is that there’s now this narrative being pushed on paid political blogs and in paid-for newspaper columns that somehow APCO and these other defecting businesses were too liberal and didn’t share the conservative, pro-business goals of Hand and the BCA.

     Lord have mercy. I think I know liberal when I see it. And trust me, APCO, Regions and BCBS ain’t it.

     Even if they pushed former Democratic House Speaker Seth Hammett to be the new BCA CEO. That decision, too, boiled down to simple business.

     Hammett is the anti-Canary. He’s nice, well respected, well liked and doesn’t even own a stick. Basically, exactly the sort of change the organization needed.

     But that’s a moot point now, I suppose. What’s left to consider is where things go from here, and it seems that other BCA defections offer some indication of the future plans.

     In addition to top companies, board member Mike Kemp and legal counsel Fournier “Boots” Gale also resigned from BCA this week. Kemp was the chairperson of BCA’s political action committee, PROGRESSPAC.

If the departing companies intended to start a new lobbying group, or join an existing one, those specific members would be fairly important.

     Whether that’s the case or not, certainly no one believes that APCO, Regions and BCBS are going to stop pushing their legislative agendas and backing bills that aid their companies and the state’s business climate.

Because just like with the push to remove Canary, the bottom line for them is money.