Pollution from North Birmigham coke plants
Alabama has an ugly history of the state's White power structure putting the health of Black communities at risk with cavalier actions that could have been prevented. So, why were they not prevented? That's because fellow Blacks, often community leaders, were enlisted to knowingly harm those they might have been expected to help, according to an investigative report from longtime Alabama attorney and civil-rights advocate Donald Watkins. In many instances, Black leaders agreed to help White bad actors for a relative pittance. In other words, Watkins reports, they "sold out" their brethren.
The most recent high-profile example of a Black-White alliance to put Blacks at risk came roughly 10 years ago in the mostly Black, pollution-riddled community of North Birmingham. History teaches that it should have been no surprise that Southern Company, its Alabama Power affiliate, and their associated Balch & Bingham law firm would align to help industrial polluters act with impunity in North Birmingham, putting the community's health status on a downhill slide. (See here and here.) But that Black leaders would help them . . . that makes a grim story even more grim.
Under the headline "Black Leaders Helped Southern Company Condemn North Birmingham Residents To A Slow, Painful Death," Watkins writes:
You can read it for yourself. Balch & Bingham, the Southern Company's longtime law firm, prepared a Secret Plan to betray more than 4,000 of the giant utility's electricity customers and condemn them to an agonizing death experience.
This Plan was reduced to writing and successfully implemented. The death toll from the Plan's implementation in Alabama, a so-called "pro life" state, is staggering.
The Plan describes how Black Birmingham public officials, community leaders, civil rights activists, and social media influencers teamed within a network of Southern Company affiliates, vendors, business alliance partners, and political allies to condemn more than 4,000 residents in North Birmingham to a long, slow, painful death from their lifelong exposure to toxic pollutants in the air and ground in their economically struggling neighborhoods.
As discussed in a September 1, 2022, investigative article published by ProPublica, these North Birmingham neighborhoods have been saturated with deadly toxins as a result of a century of industrial pollution by companies closely allied with the Southern Company.
The Plan was written by Scott Phillips and Trey Glenn, who worked as consultants for the Southern Company’s primary law firm -- Balch & Bingham. Both men are White.
The Plan lays out how the Southern Company, working in concert with its business alliance networking partners, could defeat an effort by the U.S. Environmental Protection Agency (EPA) to rescue the North Birmingham residents in the Collegeville, Fairmont, and Harriman Park neighborhoods from the death and despair that flowed from their extensive exposure to air and ground pollution.
About 92.5 % of the residents in these three neighborhoods are Black.
That this truly was a "plan," reduced to writing and intentionally put into action, makes one wonder about the humanity of both White and Black leaders in Alabama. Writes Watkins:
The Plan speaks for itself. It even includes a color-coded chart that identified individuals and organizations that the Southern Company could use to play a key role in selling out the residents of North Birmingham. Those who participated in the sellout of these residents did their jobs, and did them well.
As a result, the residents of North Birmingham got royally screwed, in every conceivable way.
Between 2013 and 2017, Birmingham area public officials, community leaders, civil rights leaders, and their cronies and influencers worked in concert with each other to sell out more than 4,000 North Birmingham residents for mere "pocket change" from the Southern Company and its network of business alliance partners.
Alabama Power Company and Balch & Bingham organized the effort for the benefit of U.S. Pipe, Alagasco, KMAC, ABC Coke, and the Drummond Company, all of whom are major industrial polluters.
Balch & Bingham has a suite of offices inside the Birmingham headquarters of Alabama Power Company.
The residents of North Birmingham cannot escape their death sentence because they live in housing projects and/or single-family residences that have no fair market value. The air they breathe and the soil beneath their feet are the most contaminated of any place in America.
These residents are slowly dying from cancer and a host of respiratory problems, all of which were caused by the heavy industrial polluters whom the EPA targeted to pay for a massive, multi-billion dollar cleanup of their neighborhoods.
The abuse of Blacks in North Birmingham is reminiscent of another ugly chapter in Alabama's history, reports Watkins:
This is the worst sellout of African-Americans in the U.S. since 623 poor Black men in Macon County, Alabama were duped by the United States Public Health Service (USPHS) and Alabama Department of Public Health officials into participating in nontherapeutic human experimentation on syphilitic patients, without their valid, competent, voluntary, and informed consent to such experimentation. Known as the “Tuskegee Syphilis Study,” these men were tracked to their deaths from 1932 to 1972.
Black nurses and support staff participated in the study, along with White federal and state public-health officials. They knew that penicillin was available to treat the men who were syphilitic, but they intentionally withheld this medicine from them. This inhuman act allowed most of the 445 syphilitic men to die a long, slow, painful death without any medical treatment for their condition.
History has repeated itself in North Birmingham, Watkins says, and he provides background on how the story unfolded:
In September 2013, the EPA began an effort to list the 35th Avenue Superfund site in North Birmingham on the National Priority List (NPL) and expand the site to include polluted properties located in the City of Tarrant.
The EPA sent letters to U.S. Pipe, Alagasco, KMAC, ABC Coke, and the Drummond Company stating that they might be listed as additional “Potentially Responsible Parties (PRP)” for the 35th Avenue Superfund site cleanup of the dangerous toxins in North Birmingham and the City of Tarrant.
An NPL listing would have forced these industrial polluters to clean up the North Birmingham sites at their corporate expense and on an expedited basis.
Prior to 2013, the EPA had established the 35th Avenue Superfund site but had not listed it on the NPL. Additionally, the EPA had only listed the Walter Coke, Inc., as a PRP.
U.S. Pipe, Alagasco, KMAC, ABC Coke, and The Drummond Company are longtime networking partners and political allies of the Southern Company and Alabama Power Company. They were vehemently opposed to this EPA initiative.
The Southern Company, acting through Alabama Power, led a sustained and coordinated effort to block the NPL listing and expanded EPA cleanup of North Birmingham.
The alliance of industrial polluters could have taken an honorable approach to their problem. But thinking of their pocketbooks, and probably their stock prices, they decided to move forward in an underhanded fashion. Writes Watkins:
Rather than pooling their corporate resources to clean up the North Birmingham Superfund site, the Southern Company and its network of heavy industrial polluters decided it was cheaper to get Birmingham’s Black public officials, community leaders, media organizations, and civil-rights activists to attack and undermine the EPA's expanded cleanup and NPL initiatives.
This Southern Company decision to place a chokehold on these EPA Superfund initiatives had deadly consequences for the residents of North Birmingham. What is worse, the lives of these residents did not matter to the Black or White participants who helped the Southern Company execute the Plan.
The lives of these 4,000 residents certainly meant nothing to James Y. Kerr II, the Southern Company's general counsel, chief compliance officer, and chief of staff to then-CEO Thomas A. Fanning. Kerr, a closet racist with an “Old South” dismissive attitude towards Blacks, oversaw the implementation of The Plan with his close friend, former Alabama Power CEO Mark Crosswhite.
As James Kerr stated on an audio clip of a 2018 call with Kevin B. Forbes, chief executive officer of theCDLU, the nightmarish experience of the North Birmingham residents was nothing but a “hypothesis," which Kerr coldly and quickly dismissed.
The Southern Company's Callous Attitude Killed Hundreds of North Birmingham residents Over the Years Without Batting an Eye
The Plan’s stated goals are simple and straightforward:
1. Avoid an NPL Listing,
2. Hijack the North Birmingham Community Coalition, a neighborhood advocacy group that worked with the EPA to clean up the heavy industrial pollution in North Birmingham,
3. Fragment the proponents of the EPA Superfund cleanup,
4. Undermine the credibility of the proponents of the EPA cleanup, and
5. Align the Plan’s participants with the Drummond Team, the ABC Coke Team, Steve Bradley (a longtime Alabama Power public-relations operative), and the Trey Glenn/Scott Phillips Team to defeat an expanded, expedited, massive, expensive, EPA-mandated cleanup of North Birmingham.
Balch & Bingham, long aligned with Southern Company and Alabama Power, played a front-and-center role in designing and implementing The Plan:
The Plan, which is labeled the “Community Strategy, 35th Avenue Superfund Site, North Birmingham, AL,” was hidden from public view behind the cloak of an “Attorney-Client Work Product, Privileged & Confidential" designation.
The Southern Company and Alabama Power used Balch & Bingham to oversee the day-to-day execution of the Plan to use Black community leaders to "hijack" the North Birmingham Community Coalition for the purpose of suppressing the environmental-protection rights of residents in the heavily polluted North Birmingham neighborhoods.
According to Balch & Bingham billing records, then-Birmingham city councilor William Parker met with Balch & Bingham partners Joel Gilbert and/or Grady Moore and/or Michael Davis seven times between July 2014 and November 2014. They had conference calls or emailed back and forth at least three times between July 2014 and November 2014.
Joel Gilbert was a co-defendant with former state Rep. Oliver Robinson in the bribery scheme. Gilbert was convicted of bribery, as was Oliver Robinson and Drummond executive David Roberson.
The Plan was used as an exhibit by prosecutors during the 2018 bribery trial of Joel Gilbert and David Roberson.
Neither the Southern Company, nor its executives, was criminally charged for organizing the Oliver Robinson bribery scheme and funding it with more than $360,000 in contributions from Alabama Power and its networking partners.
According to Balch & Bingham billing records, Joel Gilbert prepared written materials for Councilor William Parker and then-Mayor William Bell to use in meetings with the EPA.
According to Balch & Bingham billing records, Joel Gilbert drafted the letter Mayor William Bell sent to the EPA that expressed concerns about placing the North Birmingham site on the National Priority List for an expedited cleanup of North Birmingham at the polluters' expense.
In 2012, the City of Birmingham sought to enter into a contract with White, Arnold & Dowd (Resolution No, 2269-12): “a Contract for Legal Services with the law firm of White, Arnold & Dowd P.C., in substantially the same form that is on file in the Office of the City Clerk, under which White, Arnold & Dowd P.C. will provide legal representation to the City with respect to environmental issues in the North Birmingham, Collegeville, Harriman Park, and Fairmont Communities for an amount not to exceed $250,000 for a term ending June 30, 2013.”
White, Arnold & Dowd is headed by Mark White, an attorney who has represented Alabama Power and its former CEO, Mark Crosswhite, for many years. Crosswhite specifically approved the creation of Alliance for Jobs and the Economy (AJE) as the vehicle for bribing Oliver Robinson.
As described in a July 12, 2023, article published by the Energy and Policy Institute, White, Arnold & Dowd is one of the Southern Company's "go to" law firms for handling messy problems.
Attorneys U.W. Clemon and Rebecca DePalma, who were members of White, Arnold & Dowd at the time, were designated to handle EPA-related matters under the city’s proposed contract.
While Balch & Bingham was acting out front, Watkins poses this question: Who was operating in the shadows? Here is how he answers the question:
Emails between U.W. Clemon and Trey Glenn, a second consultant hired by Balch & Bingham to devise and implement the Plan, showed Glenn strategizing with U.W. Clemon and agreeing that Clemon would handle Drummond’s outreach to the North Birmingham Community Coalition.
Even though the City of Birmingham paid White, Arnold & Dowd $50,000 in February 2012 to work on EPA-related matters, then-former Councilor Maxine Parker was unsuccessful in getting the city council to approve the proposed $250,000 contract in April 2012. The city council members who opposed the contract smelled a "rat."
As explained below, the political winds on the city council changed in 2015 and the White, Arnold & Dowd contract was later approved for a lesser amount.
Notes prepared by Joel Gilbert identified several contractors who were paid for work under the Plan. In addition to Oliver Robinson, Hezekiah Jackson, the former Birmingham Chapter NAACP president, was paid for speaking in favor of Alabama Power at a PSC rate hearings in 2013.
Birmingham consultant Catrena Norris Carter was paid by Scott Phillips’ firm to perform community outreach work in furtherance of the Plan.
Tina Bennett, an attorney who attended the EPA's Environmental Justice Bootcamp, was paid for her work on the project, which included notarizing affidavits for Get Smart Tarrant (the name that Oliver Robinson gave to his effort to suppress environmental justice rights for the residents of North Birmingham).
In January 2014, the City of Birmingham hired several contractors for EPA-related work, three of whom are listed in the chart presented in the secret plan. Gizelle Bryant, Alice Gordon, Erika Liles, and Scottie McClaney were paid for EPA-related professional consulting. Bryant, Gordon and McClaney received $30,000 each, while Liles receives $42,000.
According to their city contract, Bryant, Liles and McClaney were required to develop a plan to support the EPA cleanup process, promote public education, and seek sources of private funding for redevelopment efforts.
Alice Gordon was hired to enhance and coordinate communication efforts regarding environmental efforts, along with coordinating a visit to a Superfund site in Spartanburg, S.C.
The City of Birmingham also paid White, Arnold, and Dowd an additional $100,000 for EPA-related work, even though Mark White was representing Alabama Power Company CEO Mark Crosswhite.
From 2015 until his firing in 2022, Mark Crosswhite worked hard to keep the identified industrial polluters from being added to the NPL list. Crosswhite was fired because (a) he approved a covert surveillance operation that targeted Southern Company CEO Thomas A. Fanning and his girlfriend, Kimberly Tanaka, in 2017 and (b) the surveillance operation became public in 2022 (after Fanning married another woman).
Mark Crosswhite worked closely with James Y. Kerr II to achieve the goals of the secret Plan in a way that would create plausible deniability for the Southern Company in the event the Plan became public.
In March 2015, the Southern Company, acting through its Alabama Power affiliate, incorporated a shell company called the Alliance for Jobs and the Economy (“AJE”). AJE was headed by Drummond executive David Roberson, who decided whether to pay Oliver Robinson and other participants in the scheme from AJE or Drummond funds that were then routed through Balch & Bingham before being paid to the Foundation.
Balch & Bingham was not indicted for its money laundering role. Likewise, neither Alabama Power, nor Mark Crosswhite, was not indicted for organizing the Oliver Robinson bribery scheme.
AJE charged hefty annual membership fees to prominent companies in the area. The Drummond Company, Thompson Tractor Company, ACIPCO, U.S. Steel, Alabama Power, Nucor Steel, Protective Life Corp., and Regions Bank paid at least $360,000 into AJE for the bribery of Robinson.
None of the eight AJE financial sponsors was indicted for providing the money that was used to bribe Oliver Robinson.
In September 2015, Oliver Robinson’s Foundation started a community outreach campaign called “Get Smart Tarrant.” This program, which was run by Robinson’s daughter Amanda, focused its efforts on portraying the EPA involvement in Birmingham as bad for the local economy and scientifically unreliable. She was paid for this work.
Oliver Robinson's daughter was not indicted, nor was his wife Sakina Robinson..
Oliver Robinson's work continued until May 2016. It was funded by Balch & Bingham, which was reimbursed by AJE or Drummond, as decided by David Roberson.
Except for Oliver Robinson, none of the black leaders who brought the secret Plan to life was indicted on conspiracy charges. Their roles in the Plan have never been exposed -- until today.
In a stunning revelation, Watkins says Southern Company plans to update its North Birmingham plan and use it for an expected nuclear disaster at the company's Plant Vogtle Unit 3 in East Georgia:
The Southern Company's secret Plan was wildly successful, thanks to the complete and total sellout of North Birmingham's residents by a cadre of Birmingham's black leaders. For a $59-billion annual revenue company, the cost to the Southern Company for implementing the Plan was mere "pocket change."
In this battle between "good" and "evil," the industrial polluters won and the residents of North Birmingham lost. These residents are paying for this loss with their lives.
A highly suspect class-action lawsuit filed by White, Arnold & Dowd and U.W. Clemon produced hefty legal fees for the plaintiffs' lawyers, but only a couple of thousand dollars for the named plaintiffs and token monetary relief for the residents of North Birmingham.
The Tuskegee Syphilis Study settlement in 1974 paid the 623 surviving and deceased victims more than $9 million and provided them free healthcare for the survivors, their wives, widows, and children for life. In contrast, the class-action settlement in the North Birmingham case failed to provide the victims with adequate compensation for their injuries and deaths, free healthcare, and free social services. The settlement, itself, was a sellout.
Today, the Southern Company is prepared to sacrifice the lives of 4,000 to 60,000 residents who live within a 40-mile radius of its fatally flawed Vogtle Units 3 and 4 nuclear reactors near Waynesboro, GA. Nuclear experts expect 4,000 to 60,000 people to die from radiation poisoning as a result of a Level 7 nuclear disaster at Vogtle within 90 days after Unit 3 ascends to full power after it is placed into commercial service.
No date has been announced by the Southern Company for Vogtle Unit 3 to commence commercial operations.
According to our confidential sources inside the company, the Southern Company's secret Plan for North Birmingham has been modified, updated, and adapted for use in connection with the expected nuclear catastrophe at Vogtle Unit 3.
The successful North Birmingham experience showed the Southern Company how a well-crafted plan of influence peddling can be bought "on the cheap" in deadly industrial-contamination scenarios.
The Southern Company now believes it is untouchable.
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Stay Tuned for Part II, "Everybody who is your color is not your kind, and everybody who is your kind is not your color." Part II will examine who the residents of North Birmingham can trust among city leaders (i.e., Who did not take the money to sell them out?). The article will also identify a ray of hope for these neglected and forgotten residents.
