Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.
Todd Haynes’ newest release, Dark Waters, depicts the startling true events of how a powerful chemical company contaminated the water supply in Parkersburg, West Virginia. The toxic substance in question, C8, affected 70,000 Parkersburg residents and hundreds of their livestock.[1]The film explores the environmental lawsuit filed against the chemical giant DuPont, raising the pressing issue of whether the current mechanisms in place for holding non-state actors accountable for human rights violations are sufficient.
The offending family of synthetic chemicals, PFAS, have been used in a range of consumer products due to their ability to repel water and fats.
[2]Perfluorooctanoic acid specifically, also known as C8, had been used by
DuPont since 1951 for use in manufacturing Teflon,[3]which provides a nonstick surface for frying pans and other cookware.[4]However, the ‘miracle coating’[5]comes at a huge cost: C8 is resistant to biodegradation and therefore can persist in the environment indefinitely.[6]Though traces of C8 can be found in the bloodstream of almost every person on earth, the amount of this substance found in the blood samples of the townspeople of Parkersburg exceeds the guidelines issued by the Environmental Protection Agency (EPA).[7]
Most worryingly, internal documents indicate that DuPont long suspected that C8 was harmful, yet continued to place its workers and the public at risk.[8]As early as 1953, a DuPont employee was alerted to an inquiry regarding C8’s ‘possible toxicity’ and by 1961, the company’s own researchers confirmed this was the case and thus that the substance should be ‘handled with extreme care’.[9]Whilst these initial observations were made based on experiments on lab animals such as rats and dogs,[10]scientists have since acknowledged the harmful effects that the chemical can have upon humans. A probable link has been found between C8 exposure and diagnosed high cholesterol, ulcerative colitis, thyroid disease, testicular cancer, kidney cancer and pregnancy-induced hypertension.[11] Moreover, it is estimated that babies exposed to C8 and other PFAS could suffer impaired immune-system development and are particularly vulnerable to immunotoxicity during infancy.[12]
The danger of C8 can no longer be dismissed given the clear impact the chemical has had upon those who have come in contact with it.
Sue Bailey, a former DuPont employee in the Teflon unit of the Washington Works plant, gave birth to a son with considerable deformities, including only one nostril.[13]However, despite the federal Toxic Substances Control Act requiring companies to inform the EPA of any evidence that even suggests the chemicals they are working with are harmful,[14]DuPont failed to report the effect of C8 on Sue and its other workers.[15]
Whilst DuPont no longer uses C8[16]and Bilott recently won a £670.7 million settlement against the company,[17]it is impossible to remove the chemical from all of the water sources and bloodstreams it has now polluted.[18]The irreversible damage the company has caused should not be forgotten simply by its payment of a sum which barely scratches the surface of its revenue of $85.97 billion.[19]
From a human rights approach, the right to health is explicitly protected within the International Covenant on Economic, Social and Cultural Rights, which requires states which are party to the treaty to-
‘recognise the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’.[20]
The Committee on Economic, Social and Cultural Rights has clarified that whilst the states must not interfere directly with the right to health, their obligation to protect under Article 12 also includes taking action that prevents third party interference.[21]Thus, a state can be held responsible for failing to monitor the activities of companies like DuPont.[22]
Nevertheless, states do not appear to be conducting regulation of non-state actors required by the Committee on Economic, Social and Cultural Rights. Hessbruegge identifies the ‘one grave weakness’ of the law in this area – it assumes that the state will both be capable and inclined to undertake its protective duties.[23]For instance, whilst the United States of America is a state party to the ICESCR, insufficient action has been taken to combat the irresponsible behaviour of chemical companies like DuPont. President Trump has vocalised his opposition towards the PFAS Action Act, which would set PFAS drinking water standards and would require cleanup of existing toxic waste sites.[24] Trump’s resistance to the Act due to the purported ‘substantial, unwarranted costs on Federal, State and local agencies and other key stakeholders’ displays a deplorable sacrifice of basic standards of human health in favour of financial considerations.[25]
DuPont’s malpractice is just one instance of a human rights violation being committed by a non-state actor. Starbucks, Foot Locker and Costco Wholesale have all been highlighted by the Corporate Human Rights Benchmark for failing to make information accessible concerning actions they have taken to address the risk of human right violations.[26]DuPont merely illustrates the difficulty faced when attempting to hold corporations to account.
Though the existing prerogative of affluent corporations to ‘buy their way out’ of accountability for severe human rights violations is disheartening, it is hoped that Dark Waters may at least encourage public scrutiny of chemical companies’ policies and the atrocities they can cause. The reluctance of states to reprimand the worst offending corporations means that mobilising civil society may be our only realistic strategy.
Katie Morris
Feature Writer
Human Rights
SOURCES
[1] Alejandro De La Garza, ‘Dark Waters Tells the True Story of the Lawyer Who Took DuPont to Court and Won. But Rob Bilott’s Fight is Far From Over’ (Time, 25 November 2019) <https://time.com/5737451/dark-waters-true-story-rob-bilott/> accessed 12 February 2020.
[2] Emily Pontecorvo, ‘Dark Waters’ Tells the Origin Story of a Public Health Nightmare. We’re Still Living It’ (Grist, 5 December 2019)
<https://grist.org/justice/dark-waters-tells-the-origin-story-of-a-public-health-nightmare-were-still-living-it/> accessed 12 February 2020
[3] Sharon Kelly, ‘Teflon’s Toxic Legacy: DuPont Knew for Decades it Was Contaminating Water Supplies’ (EcoWatch, 4 January 2016) <https://www.ecowatch.com/teflons-toxic-legacy-dupont-knew-for-decades-it-was-contaminating-wate-1882142514.html> accessed 12 February 2020
[4] Daisy Coyle, ‘Is Nonstick Cookware Like Teflon Safe to Use?’ (Healthline, 13 July 2017) <https://www.healthline.com/nutrition/nonstick-cookware-safety> accessed 12 February 2020
[5] Pontecorvo (n 2)
[6] Naomi Kudo and Yoichi Kawashima, ‘Toxicity and Toxicokinetics of Perflurooctanoic Acid in Humans and Animals’ (2003) 28 The Journal of Toxicological Sciences 49, 49
[7] Jeff Mordock, ‘Taking on DuPont: Illnesses, Deaths Blamed on Pollution from W. Va. Plant’, (The News Journal, 3 April 2016)
<https://eu.delawareonline.com/story/news/2016/04/01/dupont-illnesses-deaths-c8/81151346/> accessed 12 February 2020
[8] Sharon Lerner, ‘The Teflon Toxin: DuPont and the Chemistry of Deception (The Intercept, 11 August 2015) <https://theintercept.com/2015/08/11/dupont-chemistry-deception/> accessed 12 February 2020 [9] ibid
[10] ibid
[11] C8 Science Panel, ‘The Science Panel Website’ <http://www.c8sciencepanel.org/> accessed 12 February 2020
[12] Phillippe Grandjean and others, ‘Estimated Exposures to Perfluorinated Compounds in Infancy Predict Attenuated Vaccine Antibody Concentrations at Age 5-Years’ (2017) 14 Journal of Immunotoxicology 188, 188
[13] BBC News, ‘I Pray Our Child Isn’t Born with My Deformaties’ (BBC News, 3 January 2019) <https://www.bbc.co.uk/news/av/stories-46401047/i-pray-our-child-isn-t-born-with-my-deformities> accessed 12 February 2020
[14] 15 USC § 2601 (1976)
[15] Lerner (n 8)
[16] Heather Peirce, ‘The Deadly Chemical Now in the Blood of 99.7% of Americans and the Chances are You’ve Never Heard of It’ (Upriser) <http://upriser.com/posts/the-deadly-chemical-now-in-the-blood-of-99-7-of-americans-chances-are-youve-never-heard-of-it> accessed 12 February 2020
[17] Lauren Debter, ‘DuPont Puts Toxic Exposure Lawsuits Behind It with $671 Million Settlement’ (Forbes) <https://www.forbes.com/sites/laurengensler/2017/02/13/dupont-chemours-pfoa-settlement/#26cb87ef3812> accessed 12 February 2020
[19] Fortune, ‘DuPont de Nemours’ (Fortune) <https://fortune.com/fortune500/dowdupont/> accessed 12 February 2020
[20] International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 (ICESCR) art 12
[21] Committee on Economic, Social and Cultural Rights, ‘General Comment 14’ (11 August 2000) UN Doc E/C.12/2000/4 11
[22] ibid 18
[23] Jan Arno Hessbruegge, ‘Human Rights Violations Arising from Conduct of Non-State Actors’ (2005) 11 Buff Hum Rts L Rev 21, 88
[24] Jordan Davidson, ‘Trump to Veto Bill Intended to Keep Forever Chemicals out of Groundwater’ (EcoWatch, 8 Jan 2020) <https://www.ecowatch.com/forever-chemicals-bill-pfas-trump-2644584514.html> accessed 12 February 2020
[25] Jeffrey Martin, ‘White House Announces Trump Would Likely Veto Bill Regulating ‘Forever Chemicals’ in Drinking Water’ (Newsweek, 7 January 2020) <https://www.newsweek.com/white-house-announces-trump-would-likely-veto-bill-regulating-forever-chemicals-drinking-water-1480947> accessed 12 February 2020
[26] Corporate Human Rights Benchmark, 2019 Results <https://www.corporatebenchmark.org/> accessed 12 February 2020
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