Anna Merz

While our fascination for crime has long been capitalized upon by the film industry, corporate scandals, too, are increasingly addressed in television series and films: Margin Call, The Big Short, Erin Brockovich, Deepwater Horizon, Enron: The Smartest Guys in the Room, Dirty Money. This trend is continued by Todd Haynes’ most recent film, Dark Waters (which premiered in the Netherlands on 23 January 2020) – a legal thriller on the DuPont PFOA scandal. This blog post explores the relevance of Dark Waters from a criminological perspective.

Based on the New York Times Magazine’s article “The Lawyer Who Became DuPont’s Worst Nightmare” (Rich, 2016), the film portrays attorney Rob Bilott (starred by Mark Ruffalo) and his legal fight against chemical giant DuPont for knowingly polluting the environment and endangering workers and society’s health: 70,000 people were found to be drinking poisoned water and DuPont’s actions were tied to birth defects, thyroid disease, liver damage and various kinds of cancers and tumors in humans and livestock (Rich, 2016). At the center of the scandal is PFOA (short for perfluorooctanoic acid), a toxic chemical used for the manufacturing of Teflon ‘non-stick’ frying pans; a key product for DuPont’s success story. PFOA is used in more products in ordinary households, such as carpets, water resistant clothing, cleaning products and pizza boxes. According to the health protection agency Center for Disease Control and Prevention, PFOA was found in the blood of 98% of Americans, but contamination by PFOA and PFOA-related chemicals was also found in areas around industrial production or manufacturing in Europe, including the Netherlands (European Environmental Agency, 2020). PFOA is one of many ‘forever chemicals’, which are chemicals that are not biodegradable and will remain in the blood.

Dark Waters provides insights into the power struggle as a natural corollary of corporate crimes and the pitfalls of (self-)regulation. Bilott, a corporate defense attorney at a prestigious law firm whose daily job is to defend big chemical corporations, switches allegiance to take on this ‘David versus Goliath’ lawsuit. The movie portrays a classic ‘too big to fail’ (Pontell, Black & Geis, 2014) situation. DuPont’s position of power – on an economic, political and local level – enables them to avoid the criminalization and stigmatization of their actions (Box, 1984) and mold politics to their interests. Not only is Bilott’s client, a local farmer resident nearby the DuPont production site, hardly heard or believed, Bilott finds himself in a disadvantaged position. For one, he is suddenly fighting against his own kind. Bilott is worried about the reactions of his peers (peer labelling) from who he receives pushback (see Merz, 2019). Furthermore, chemical giant DuPont has the upper hand on resources, time and capacity for prosecution (Pontell et al., 2014). Notably, the local community of Parkersburg (production site of DuPont in West Virginia)—the people directly endangered by DuPont’s crimes—also turn against Bilott, his client, and everybody who joins their fight. Locals defend the corporation as ‘good people’ even as the corporation actively pollutes their drinking water. In the end, Parkersburg and its citizens are completely dependent on DuPont, with the corporation being the biggest employer of the region and the sponsor of almost all local institutions and events. This situation of dependency, again, reflects the power dynamics at stake. Can we blame the community for that?

Although DuPont knew about the environmental and health risks of PFOA (they have conducted several studies), they refused to reveal their findings or change their products – as these were ’too important parts of business’. Here, the film raises another important issue; namely the challenges and flipside of self-regulation. How desirable is self-regulation if it allows corporations to bypass regulation by setting the standards of what is acceptable? DuPont never informed the Environmental Protection Agency (EPA) on PFOA and its health risks – so the chemical remained unregulated for decades. This practice raises barriers for enforcement as it leaves no basis on which to enforce in the first place. Moreover, DuPont was knowingly involved in EPA studies on the risks of PFOA, deploying their own scientists and lawyers in the environmental agencies and government. As stated in the New York Times Magazine article: ‘The same DuPont lawyers tasked with writing the safety limit, Bilott said, had become the government regulators responsible for enforcing that limit’. This amalgamation of economics and politics is common practice and demonstrates corporation’s ability to use their power to protect themselves from governmental and public scrutiny (see Box, 1984). We saw similar patterns in Dieselgate: not only were (and are) politics highly shaped by the will of the car industry, the German government also blocked stricter EU regulation and emission limits (“So verflochten sind Autoindustrie und Politik”, 2017). Politics are not only highly influenced by the car lobby, but governmental positions also often occupied by people formerly employed by the industry and transiting between these positions. Can we speak of independent regulation if those in positions to protect the public and environment from corporate harm and enforce appropriate rules are the same individuals who either actively collaborate with, are bound to, or even contribute to the violation of these rules? The bigger and more powerful corporations get, the more influence they can exercise, and the more we will face situations of quasi self-regulation.

One question that stuck with me during and after watching the film is: can one man fight the system? While the DuPont case started more than 20 years ago, a major success was only booked in 2017 with the settlement of 3.500 lawsuits for 671 million US dollars. The use of PFOA has been phased out at DuPont and other chemical production and manufacturing sites. In Europe, PFOA is restricted under the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) regulation. Recently, a draft law to ban PFOA has been submitted on a European level, following the agreed global ban under the Stockholm Convention. However, if the result of this case is just another string of equally toxic replacement substances that remain largely unregulated until they are eventually detected by environmental agencies (Andrews, 2020; European Environmental Agency, 2020), it would seem that little has changed. This seemingly endless struggle is pivotal to the film and portrays the cynical power games at play when it comes to corporate crime. The film’s cinematography, Ruffalo’s portrayal of an increasingly fatigued Bilott, the never-ending struggle to win the case, all bring the different dimensions and (personal) consequences of this power game alive. For Bilott, there is no glory or glamour; rather, the movie transmits a feeling of decay and gloom. Fortunately, Bilott is not portrayed as the classical hero; rather he often is fierce and evasive. He becomes obsessed with the case to a point that have personal and medical consequences – but most importantly, he is powerless. So, the question should not be whether one man can win the fight; rather, the question should be whether the fight should be left to one man. The revelations of corporate crimes often depend on brave whistleblowers, attorneys or (environmental) activists—the DuPont PFOA scandal might not have been revealed at all if it had not been for the local farmer and Bilott. An important lesson to draw from the film is that we cannot leave this fight to individuals alone. As the climate towards (big) corporations and their crimes is changing with recent settlements with pharma giants in the USA and a climate lawsuit against Shell in the Netherlands, Dark Waters is also a call-for-action. Friedrichs (1996) coined corporations and other ‘respectable offenders’ as Trusted Criminals; this case once more illustrates that too often corporations have shown that they cannot be trusted.

References

Andrews, D. (2020). FDA Studies: ‘Short-chain’ PFAS Chemicals More Toxic Than Previously Thought. Retrieved from https://www.ewg.org/news-and-analysis/2020/03/fda-studies-short-chain-pfas-chemicals-more-toxic-previously-thought.

Box, S. (1984). Power, crime and mystification. Routledge.

European Environmental Agency. (2020). Emerging Chemical Risks in Europe – ‘PFAS’. Retrieved from https://www.eea.europa.eu/themes/human/chemicals/emerging-chemical-risks-in-europe.

Friedrichs, D. 0. (1996). Trusted criminals: White collar crime in contemporary society. Belmont, CA: Wadsworth.

Merz, A. (2019). Top-down and out?: Reassessing the labelling approach in the light of corporate deviance. Tijdschrift over Cultuur en Criminaliteit, 9 (2), 14-36.

Pontell, H. N., Black, W. K., & Geis, G. (2014). Too big to fail, too powerful to jail? On the absence of criminal prosecutions after the 2008 financial meltdown. Crime, Law and Social Change, 61(1), 1-13.

Rich, N. (2016, January 6). The Lawyer Who Became DuPont’s Worst Nightmare. The New York Times Magazine. Retrieved from https://www.nytimes.com/2016/01/10/magazine/the-lawyer-who-became-duponts-worst-nightmare.html.

So verflochten sind Autoindustrie und Politik. (2016, August 1). Süddeutsche Zeitung. Retrieved from https://www.sueddeutsche.de/wirtschaft/lobbyismus-so-verflochten-sind-autoindustrie-und-politik-1.3611241.