Dark Waters

By Mike Koetting               January 16, 2020

Just before Christmas, we saw Dark Waters, Todd Haynes’ movie about a lawyer whose career (and much of his firm’s) had centered on work for the chemical industry. The movie opens with him in a corporate board room joking with chemical company defendants about how to deal with the EPA over some SuperFund sites.

Only because of a haphazard connection—his grandmother was good friends with the neighbor of the farmer who shows up in the law firm’s reception area—does he even pay any attention to the fuzzy videos of dying cows the farmer brought. His immediate assumption was that the farmer didn’t really understand what was going on, an attitude that comes through loud and clear to the farmer. Before it’s over, the lawyer winds up taking on DuPont Chemical Company as it becomes unmistakably clear that DuPont had not only been maliciously careless in disposing of very toxic waste, but that it had deliberately and systematically been involved in a 15 year cover-up of the toxic impacts of one particular chemical, PFOA.  

The movie, based on a very real case as reported by the New York Times, is a typical David v Goliath story, the lone hero against the corporate villain—although in this case, David is supported, even if occasionally reluctantly, by a well-resourced law firm. It’s a good movie and a stinging critique of what can happen when corporations run amok.

One of the major lessons is about regulatory capture—what happens when regulatory agencies get too friendly with the agencies they are supposed to regulate. In the movie, the EPA—which at that time was a relatively new agency—had left it to the chemical industry to identify which of their existing chemicals was so dangerous that the EPA needed to regulate it. Guess what? The lists were not long and left out a lot of things that might be dangerous, particularly in concentrations. Among those left out was PFOA, the chemical DuPont had been dumping in West Virginia. When the EPA eventually got on the case, DuPont convinced the State Health Department to adopt a ginned-up new standard for what comprised harm—at a ridiculously high level, thereby further delaying any attempt at settlement.

The issue of regulatory capture by corporations is not a new story. Mike Lofgren, a former congressional staffer, has written persuasively on this topic, as have many others. It is an ongoing concern built into the sociology of regulation. You can’t regulate effectively without getting some degree of cooperation from the people you are supposed to regulate. It is a tough line—one that gets crossed too-often—but is to some degree inevitable in the complex society we have created.

But this was an instance of “regulatory capture” that, as filmed, opened a compelling window into the animus large swaths of American hold against the “elite”. It made their seething anger more accessible than most articles I’ve read.

To start with, the most immediate victims, in this case a farmer immediately downstream of the dump, could get no help from government, even as his cows were dying off in droves. Indeed, for the most part, governments—federal, state, and local–seemed much more aligned with DuPont. Nor would any of the local lawyers show any interest in taking on DuPont, which effectively owned the town. Worse yet, the most immediate victims knew that most of their neighbors were more worried about losing the DuPont plant than addressing the environmental issues. One might be tempted to call that some sort of “false consciousness” on their neighbors’ part. But it is not mindless paranoia to imagine that DuPont, or any other large American manufacturer, is only one bottom line adjustment from moving the plant to Mexico, the Philippines, or wherever else government is willing to take an even more lenient view. And the community knows that this state of affairs has arisen because of the machinations of an elite that benefits at their expense. It is hardly irrational for people to focus their immediate ire less on the specific firm, that is if nothing else giving them a weekly paycheck, and more on the overall system that allows people who live in cosmopolitan cities to reap the profits. In the meantime, the community is asked to choose between risking their own livelihood or supporting their neighbor—whom they understand is getting screwed. The anger might not be totally well focused, but it is real and understandable.

The film also vividly illustrates how the clash of cultures exacerbates the issues. The distinctly “down their nose” treatment the farmers received in the reception area of the big-deal firm, either meant or unintentional, was surely seen as a reminder that working people don’t belong in this building with all the high-priced lawyers. And so on. The scene of the lawyer in his wingtip corporate shoes trying to pick his way across the famer’s yard is contrasted again and again with scenes where lawyers, the companies they represent, and government meet in big hotels and rub shoulders over fancy meals. Their convivial bonhomie is, literally, worlds away from the victims’ lives. From the outside, it must surely look a conspiracy of the big guys against the little guys. And it’s for sure the big guys aren’t hurting.

Even the lawyer who eventually winds up leading the charge against DuPont lives in a nice house and sends his kids to private schools. The various victims come to regard his determination with some approval, but also remain acutely aware that he is not one of them and never will be. They assume that once this particular suit is settled, the lawyer and his ilk will go back to defending chemical companies. (In fact, in the New York Times article, one of the lawyer’s colleagues laments the amount of business the firm lost from attacking the chemical companies that had been their bread and butter.) Again, this was not lost on the victims. They understood all too acutely that even though “the law” was on their side this time, “the law” was a machine that less often protected them and more often allowed others to live more comfortable lives than the ones they were struggling through. Even the farmer who had been destroyed—and ultimately killed—by the chemicals and started the legal case said to his lawyer, “Don’t expect a merit badge because just for once you did the right thing.”

There was also the issue of time frame. The ultimate victory in the class action suite required years and years of litigation. While that was dragging on, people got sick, lost their jobs because of illness, and even died. But the lawyers—while they kept at it—didn’t lose their homes or experience the deaths and birth-defects. They continued to live their comfortable lives.

In short, the movie was an up close look at the conundrum faced by those of us in “the elite”—which is most of the readers of this blog, even if we’re not “the 1%”.  (Note in the above graph, there is virtually no wealth—savings for old age, or cushion in case of emergency—in the less wealthy two-thirds of the population. Income differentials are a little less dramatic, but still stark enough to suggest major differences in how some one can live his or her life.) We’re educated, we’re relatively comfortable, and we don’t live day-to-day. There is clear data that this makes us less stressed and happier.

We understand that this field is not fair, we abhor the excesses of corporate greed, we take up the challenge when we see blatant wrongs and we have plenty of reasons to think of ourselves as good people. But we are still at the winning end of the field and our lives are closer to the elite than to the victims in Dark Waters. Until the system is inherently more fair, the issues thrashing around in the Dark Waters threaten to engulf us all.

Author: mkbhhw

Mike Koetting’s career has been in health care policy and administration. But it has always been on the fringes of politics. His first job out of graduate school was conducting an evaluation of the Illinois Medicaid program for the Illinois Legislative Budget Office. In the following 40 years, he has been a health care provider, a researcher, a teacher, a regulator, a consultant and a payor. The biggest part of his career was 24 years as Vice President of Planning for the University of Chicago Medical Center. He retired from there in 2008, but in 2010 was asked to implement the ACA Medicaid expansion in Illinois, which kept him busy for another 5 years.

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