Guest post by Joelle Jackson.
Themester intern Joelle Jackson sat down with Austen Parrish, Dean and James H. Rudy Professor of the Indiana University Maurer School of Law, to discuss the upcoming Themester film Dark Waters and the roles that law plays in the environmentalism movement.
The film, based on a true story, follows Cincinnati corporate lawyer Robert Bilott as he takes on an unusual uphill battle: fighting chemical corporation DuPont in court over its decades-long poisoning of a rural West Virginia town. A gripping legal drama, the film stars Mark Ruffalo, Anne Hathaway, and Tim Robbins, and tells the harrowing story of a town plagued by an invisible and insidious environmental disaster.
In the film, Robert employs some creative legal maneuvers to prove that the town was being poisoned by DuPont, including implementing a massive medical monitoring scheme that tested residents for health conditions that could be caused by DuPont’s chemicals. What does the legal process of proving causation of environmental damages look like more broadly?
Proving causation in environmental litigation has always been challenging, and good lawyers have to be creative in how they prove that the defendant’s conduct caused the plaintiff’s injury. You have both the general question of whether particular substances or chemicals can cause illnesses (in this case, whether chemicals can cause cancer and the other illnesses at issue) and then you also have the specific question of whether it was these toxins that caused the plaintiff’s injuries, rather than some other cause. Many things can cause cancer and causation can be particularly difficult when you have injuries over a long period of time.
Epidemiological or toxicological studies have become more common in helping establish the necessary causal link between the defendant’s conduct (in this case the chemical contamination of the water supply) and the plaintiff’s harm. I don’t know the details of the Dark Waters case, but studies have shown how long-term exposure to the chemicals that existed in the DuPont plant can lead to a number of illnesses, including some types of cancer.
As I understand it, Robert Bilott alleged that DuPont knew for decades that its chemicals were linked to serious health problems, but nevertheless ignored those risks. So one of the other big questions in the environmental area is how populations can be exposed to potentially toxic chemicals while it can take a very long time for science to catch up in a way to provide compelling evidence that the chemicals are toxic and that they caused the plaintiffs’ particular injuries.
The film very much foregrounds class and geographic divides, relating both to the way the people of the town are overlooked and mistreated by outsiders and the way they may be hesitant to accept outside support. How does this relate to the ability to get justice, both on the part of the justice system and on the part of those harmed?
Often justice is not just about results, but about process and how to gain the trust and confidence of your client, or public trust in the legal system. Several recent studies have shown that there’s a rural/urban divide in the United States related to access to justice that ties into wealth disparities and class. Big-city approaches to legal aid, for example, often don’t work the same or as effectively in rural settings.
This dynamic (of outsider v. insider, urban v. rural) can play out in the way you suggest. There can be distrust of elites that are not part of the local community, and a distrust of those who are less connected to local traditions and culture. There can often be a distrust of state institutions and of government generally. And that can make it feel that the justice system (lawyers, judges, courts) is not there to support the local people, and a cynicism about whether actual justice exists.
There is also something inherently offensive about outsiders coming in and trying to tell locals that they know better than they do. You can see this dynamic perhaps most starkly in international environmental work, where there’s criticism when Western, more-developed countries try to impose strict environmental policies on developing countries. Those countries feel that some of those efforts, even if well-intentioned, are in some ways imperialistic. There’s a degree of hypocrisy that colonial powers once plundered those natural resources, and now groups from those countries are telling countries what they can or cannot do with the natural resources they still have.
In some cases, the issue may be less about a rural versus an urban divide, as it is that people need jobs and the money that comes with those jobs to feed their families. Environmental protection is important, but for some, they’re worried about losing a local employer who they count on for jobs. So there can be nervousness about outsiders coming in and attacking an organization or company that is helping the local economy. The hesitance to accept outside support may reflect distrust of outsiders, but it also may be that the local interest is a little different.
Dark Waters is reminiscent of other films, such as A Civil Action and Erin Brockovich. Why do you think that these sorts of films — legal dramas about fighting against polluting corporations — make for such captivating and popular stories?
Well, people like a story of a little guy battling the big guy. People also like stories that pit good against evil, of righting wrongs, of success in the face of impossible odds. Legal dramas, with their mix of intrigue and morality tales, often capture these things well.
There is also something inherently dramatic and suspense-building about a classic courtroom scene. Legal dramas aren’t really about what it means to be a lawyer (the reality is more boring, with lots of research and writing, hard work, tedious discovery, and motion practice). Instead, legal dramas are ways that an audience can connect to bigger questions of justice and fair treatment, where lawyers are heroes standing up for the little guy.
The lone-crusader-against-the-corrupt-system film has long been one that captures our imagination. It’s not just films like A Civil Action and Erin Brockovich — it’s also classics like The Accused, The Verdict, A Few Good Men, The Insider, and Philadelphia, to name just a few. Perhaps it’s not surprising that when the American Film Institute published its list “The 100 Greatest Heroes & Villains” that defense attorney Atticus Finch from To Kill a Mockingbird topped the list.
How do you see lawyers fitting into the environmental movement? What is the importance of legal education in combating climate change?
Understanding the complex regulatory structure around environmentalism and environmental law is important if you want to make change. Just as it’s important for lawyers to be able to understand the science behind environmental and ecological preservation, progress on the environmental front requires understanding regulation and administrative law, and how law and policy interact.
IU students who earn a joint JD-MPA, or JD-MSES (a masters in environmental science) are particularly well-equipped to make a difference because those degrees provided them the tools to understand both the complex regulatory world in which we live and the science that is so important to understanding how to make environmental change.
Some of the answer is in the way the United States addresses public issues. In the U.S., less is done through government agencies like the EPA, and more is done through private citizen suits. Many of the biggest issues around environmental justice are handled in the courts, and courts are important in American society. Lawyers therefore take on an important role in the ways that environmental challenges, like climate change, are addressed. Also, many members of Congress are lawyers. Understanding federal and state legislation — and how to create new legislation to regulate greenhouse gas emissions — is a key part of addressing climate change.
Said differently, a range of scientists have set out ways for reducing greenhouse gas emissions and for meeting targets. They have come up with new adaptive ways to generate electricity, fuel vehicles, heat buildings, in ways that would combat climate change. Lawyers, however, are necessary to implement these changes. Lawyers play a key role to develop, create, administer, and enforce laws that make new adaptive ways effective.
Why do you think students and community members here in Bloomington should see Dark Waters? What do you hope that they take away from the film and the story?
It’s a terrific movie, with talented actors. So that’s a good enough reason on its own. But movies like this are also important in showing how individual people can make a difference in the lives of others, as well as to see how law has a role in making a difference in people’s lives. Rob Bilott has had a remarkable career, and it’s good to celebrate that and see how one person has been able to make a difference in the way we think about environmental law. We should keep in mind that this is Hollywood, and it’s been dramatized to make the movie exciting and a blockbuster. But at its core it’s a glimpse into how hard-working attorneys can help us better understand how certain chemicals may pose significant health threats.
Many modern-day stories about environmentalism involve us looking back and regretting that we didn’t have the regulatory mechanisms or the understanding of the science at the time to prevent harm that should never have occurred. It’s important to learn from our mistakes so they don’t happen again. For people interested in environmentalism, conservation, and sustainability, a movie like Dark Waters is thought-provoking and worth an evening at the fabulous IU Cinema.
Join IU Cinema and Themester for a screening of Dark Waters with an introduction by Rob Bilott on October 26 at 7 pm. Themester is also hosting a talk and Q&A with Bilott that will be held at 5 pm that same day in the Paul. H. O’Neill Graduate Center. Registration is now open.
This event is sponsored by O’Neill School of Public and Environmental Affairs, Maurer School of Law, the Integrated Program in the Environment, the Environmental Resilience Institute, and the College of Arts and Sciences’ Themester 2021: Resilience.
Joelle Jackson is a Themester 2021 Events and Outreach Intern. She is a sophomore Wells Scholar pursuing dual majors in Anthropology and Folklore and Ethnomusicology.