A jury will decide whether a corporate executive and two Alabama lawyers bribed a state legislator to head off a company’s Superfund liability, a federal court in Alabama ruled May 4.

The defendants allegedly sought to forestall potential environmental liability by paying the legislator to portray EPA cleanup plans as federal overreach—an unusual scenario in Superfund-related litigation that typically occurs in civil, not criminal, courts.

The grand jury indictment alleges that David Roberson, an executive with Birmingham, Ala.-based Drummond Co., conspired with lawyers Joel Gilbert and Steven McKinney, of Balch & Bingham, to derail EPA plans to add the 35th Avenue Superfund Site to the National Priorities List.

That designation would ramp-up cleanup efforts at the Birmingham site, leading to the risk of cost recovery litigation against Drummond and other companies found to be responsible for any contamination.

At least $360,000 was allegedly funneled to a charitable foundation run by then-state representative Oliver Robinson, who pleaded guilty to federal conspiracy, bribery, and other charges last year.

The court rejected defense arguments that McDonnell v. United States, a 2016 U.S. Supreme Court ruling narrowly defining “official acts” in federal bribery cases, barred the prosecution.

The allegations here were supported by three “official acts” by Robinson, the U.S. District Court for the Northern District of Alabama said.

They included a meeting with EPA officials at which Robinson opposed the EPA plan, his communications with state environmental officers, and his vote to advance a resolution calling on the state attorney general “to combat the EPA’s overreach,” the court said.

Arguments that the prosecution also impinged on protected political speech fared no better.

There was “no indication that the government targeted the defendants because of their speech,” as opposed to their conduct, the court said.

Judge Abdul K. Kallon wrote the opinion.

Gibson, Dunn & Crutcher LLP; Lightfoot Franklin & White LLC; and Frohsin & Barger LLC represented Gilbert.

Gillen Withers & Lake LLC, Baxley DIllard McKnight James & McElroy, and the Law Office of Lawanda Hodges LLC represented McKinney.

The Bloomston Firm, Buckley Sandler, and Jones Day represented Roberson.

The case is United States v. Gilbert, 2018 BL 158999, N.D. Ala., No.17-cr-00419, 5/4/18.