May 11 - 18, 2000
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They are the environmental movement's most famous celebrities: Erin Brockovich, the working-class zero turned toxic avenger, and Jan Schlichtmann, the lawyer who went up against some of the biggest corporations on the planet. Their life stories have been portrayed by two of Hollywood's brightest stars, Julia Roberts and John Travolta. Screen greens
Erin Brockovich and Jan Schlichtmann are battling over Salem's toxic power plant. More intriguing, though, is Schlichtmann's battle with himself.
by Dan Kennedy
Now they are at odds in the hottest environmental battle in Massachusetts.
The object of their disagreement is the Salem Harbor power plant, a hulking, decades-old behemoth hard by the ocean. Acquired 18 months ago by a subsidiary of Brockovich's old nemesis, Pacific Gas & Electric, Salem burns both oil and coal. It is one of two PG&E-owned power plants in Massachusetts -- the other is in Somerset -- that were built before the Clean Air Act of 1977 and are thus exempt from federal air-pollution standards. Last week, the Harvard School of Public Health released a study showing that soot-filled emissions from the Salem plant are responsible for an estimated 53 premature deaths, 14,400 asthma attacks, and 570 emergency-room visits every year. The numbers for the Somerset plant, known as Brayton Point, are approximately twice as bad, according to the Harvard researchers. (PG&E spokeswoman Lisa Franklin says the company is conducting a "technical review" of the results.)
On this much, Brockovich and Schlichtmann would agree: what's going on in Salem, and at Brayton Point, has got to stop. Where they part company is over how -- and how much -- PG&E will be forced clean up its act.
On April 5, PG&E announced a $400 million plan to replace the current Salem facility with a state-of-the-art, clean-coal-burning plant that would vastly reduce emissions. Environmental activists and some state officials called the plan too little, too late. But Schlichtmann endorsed it, even going so far as to take the podium during PG&E's news conference. "When we fight, we waste precious time and energy," Schlichtmann said that day.
Brockovich, whose struggle to expose PG&E's wrongdoing is the subject of the eponymous hit movie, has denounced the company's actions in Salem, telling the Boston Globe: "For me, PG&E has a proven pattern of deceit. So anytime I come across a facility of theirs where people say they're getting sick, call me jaded, but I automatically believe them." Brockovich recently canceled an appearance in Salem, but activists hope to lure her at some future date.
It's tempting to call this the Battle of the Hollywood Environmentalists. Tempting, but simplistic. In the environmental community, Schlichtmann is alone in his support for the PG&E plan. Opponents -- who are pushing instead for conversion to natural gas -- say that no matter how advanced PG&E's technology may be, coal will spew carbon dioxide into the atmosphere. That will contribute to global warming and could lead to mercury contamination as well, since coal contains the highly toxic substance. Schlichtmann's defection is unlikely to alter the final outcome in any significant way. Indeed, the new regulations announced by Governor Paul Cellucci on Tuesday may stop PG&E's proposal in its tracks: though PG&E officials portrayed their initiative as in keeping with those regulations, activists say Cellucci's announcement actually underscores the inadequacies of the clean-coal plan.
But Schlichtmann's position is fascinating for what it says about Schlichtmann himself -- a charismatic, brilliant, erratic, frustrating lawyer best known for his handling of the 1986 Woburn toxic-waste trial, which was made famous by Jonathan Harr's 1995 book A Civil Action and the vastly inferior 1999 movie of the same name. Schlichtmann, representing eight families that had been struck by leukemia and other illnesses, sued two multinational corporations he believed were responsible for contaminating Woburn's drinking water: W.R. Grace & Company and Beatrice Foods Company. Schlichtmann managed to get the case into a federal district courtroom through sheer force of will, only to see it crumble in front of a jury, in part because of his own strategic and tactical blunders. It's a story I'm more familiar with than most: I covered the case for much of the 1980s as a reporter for the Woburn Daily Times Chronicle, and have written about its aftermath on several occasions for the Phoenix.
In the end, Grace settled for a miserly $8 million without admitting wrongdoing, and Beatrice was cleared. Two of Schlichtmann's eight clients had a serious falling-out with him, including Anne Anderson, whose son Jimmy died of leukemia, and whose early investigative work paved the way for the lawsuit. Schlichtmann himself, broke and despondent, all but disappeared until Harr's book turned him into a celebrity.
For several years, Schlichtmann -- now 49, a lot grayer than he was in Judge Walter Jay Skinner's courtroom but still rail-thin and a whirl of energy -- has been talking about a new paradigm, of sitting down and working with polluters, of trying to appeal to their better natures and reaching for compromise rather than doing battle. It's in that context, he says, that he endorsed PG&E's proposal to clean up its Salem plant.
"It took me a while to figure it out," he told me last week, talking about his Woburn experience. "It was nine years, and in many ways it was a war. As I look back over it, I'm very proud of the work that we did. But I've come to appreciate that we can't really afford these nine-year wars. Wars are wasteful."
But though Schlichtmann's shattering ordeal in Woburn may have turned him into an evangelist for what he calls the "civilizing" effects of reasonable people working out their differences in a reasonable manner, there's scant evidence that his new paradigm is effective. PG&E is pushing a clean-coal proposal for two reasons: pressure from activists and government officials, culminating in the Harvard study; and fear that it could otherwise be forced to do something even more expensive. Schlichtmann's support may be a public-relations feather in PG&E's corporate cap, but it's hard to see how it amounts to anything more significant or lasting. Likewise, Schlichtmann's efforts to mediate environmental disputes elsewhere have won him respect (and made him some enemies) -- but have done damn little to help the victims of corporate irresponsibility.
An old ally of Schlichtmann's -- Rob Sargent, the legislative director of the Massachusetts Public Interest Research Group, or MassPIRG -- is appalled by his willingness to lend his support to PG&E. "I have to say I'm disappointed," Sargent says, criticizing Schlichtmann for having "the arrogance to think that he would allow his fame to create at least the appearance that he was speaking for the environmental community."
To be sure, Erin Brockovich, in speaking out against PG&E, took the easy way. Schlichtmann chose a much harder road. But admirable though that may be in the abstract, there are times when the hard road is nothing more than a wrong turn.
If you don't have anything nice to say about PG&E, then you'd better keep off the grass.It's Thursday afternoon, May 4, and about a dozen members of the Salem Power Plant HealthLink have gathered in front of the facility to talk with the media about the Harvard study. The activists are mostly well-dressed middle-aged women. The gathering looks about as threatening as a Hadassah meeting, with HealthLink members handing out press releases and quietly giving interviews. Twice, though, city police officers pass through to warn them not to stray from the sidewalk onto the grass, which, we are told, is plant property. One cop politely but firmly threatens arrest. That's the way it is in Salem, where PG&E pays 20 percent of the city's taxes. Mayor Stanley Usovicz has gone so far as to endorse the clean-coal plan pushed by the company as "good news," despite the inadequacies noted by the company's critics.
Until recently, one of those critics was Jan Schlichtmann.
If sincerity can be measured by how much someone's actions will affect him personally, then Schlichtmann's sincerity regarding the Salem power plant cannot be questioned. He, his wife, and his two toddler-age sons live in Beverly, directly on the harbor. Schlichtmann says he can see the plant's smokestacks from his back window, and that he and his wife frequently have to wipe soot off their sills and other surfaces so their boys don't eat it.
The plant is one of 485 across the country that are exempt from federal clean-air standards, grandfathered in because they were built prior to the Clean Air Act of 1977. Six such plants, owned by PG&E and four other companies -- the so-called Filthy Five -- are in Massachusetts: the Salem and the Brayton Point facilities, a second plant in Somerset, and others in Everett, Sandwich, and Holyoke. (At Tuesday's State House news conference, Cellucci -- flanked by state officials, environmental activists, and utility executives -- proposed regulations to eliminate the grandfather clause. But though Cellucci praised the executives for coming up with voluntary plans to comply, MassPIRG's Rob Sargent, who joined Cellucci on stage, said afterward that PG&E's Salem proposal remains "unacceptable," and that he and other activists will continue to fight it.)
In the spring of 1998, members of the newly formed HealthLink organization -- impressed with Jonathan Harr's book -- contacted Schlichtmann, who in turn helped organize a meeting with PG&E. "I remember that celebrity walking in," recalls Lynn Nadeau, a Marblehead resident and HealthLink co-founder. "And I remember saying that I was afraid of being seduced and abandoned. Everybody laughed, but I felt like I had seen the future."
Talks continued until that fall, when, as Nadeau describes it, HealthLink joined the Clean Air Coalition, which was pushing for tough new state regulations. At that point, she says, PG&E cut off talks and HealthLink went its own way, organizing, holding community forums, and meeting with elected officials. Schlichtmann spoke at several events, she says, describing his appearances as "cameos" -- helpful to the organization's visibility, but hardly central to its work.
The split with Schlichtmann came this spring, when PG&E began pushing for a meeting so that it could unveil its clean-coal plan and obtain HealthLink's endorsement. HealthLink member Gail McCormick, of Lynn, who attended, says Schlichtmann essentially ran the meeting. PG&E officials demanded a quick endorsement, which McCormick says her organization was not prepared to give. Afterward, Nadeau says, Schlichtmann pressured her and others to sign on, telling her, "Lynn, you can't operate out of fear. You have to be a leader, not a follower." At a tense follow-up meeting on April 1, HealthLink members decided not to back PG&E's plan. Four days later, Schlichtmann shared the podium with PG&E officials at Salem City Hall. Nadeau's proudest achievement: getting a critical press release into the hands of reporters as they filed in so they could ask uncomfortable questions.
"He's not a straightforward person," Nadeau says of Schlichtmann. "I don't think of him as an open, sharing person. It's hard to know what his agenda really is." Later, though, she strikes a more realistic tone: "We never looked at him as our knight in shining armor. We just used him. We rode him while we could."
Schlichtmann describes his support for PG&E as a simple acknowledgment that clean coal would be a substantial improvement and that, by working with the company, environmentalists can avoid what could amount to years of delay. Following Tuesday's news conference, while Rob Sargent, Lynn Nadeau, and other activists fumed, Schlichtmann was almost gleeful. PG&E vice-president Steven Wolfgram professed a willingness to convert half the Salem plant to natural gas if a pipeline is installed in the near future -- a stance that directly contradicts the position Wolfgram has taken in talks with pipeline proponents, Sargent charged. Schlichtmann, though, said he has been in touch with Canadian gas-pipeline officials, and hopes to help broker a deal between them and PG&E. As for Wolfgram's plan to keep burning coal even if the plant is partially converted to gas, Schlichtmann said that though an all-gas facility would be preferable, "you have to keep in mind the history of the plant."
You might call it the art of the possible. Or you might see it as a part of Schlichtmann's personal quest to derive meaning from his years in Woburn. Judging from his record so far, his quest isn't over yet.
Several decades ago General Electric Company, the main employer in Pittsfield, Massachusetts, offered free, clean fill to anyone who wanted it. Eventually, it was dumped onto about 150 properties. Years later, the fill turned out to have been contaminated with toxic PCBs -- and documents showed that GE knew it, although the company maintains it did not know then that PCBs were dangerous. The Housatonic River Initiative (HRI) began fighting back, helping to form a group known as Citizens for PCB Removal and agitating for action. The group's work was cited by the New York Times and the Wall Street Journal, putting GE under pressure to compensate the property owners.The way HRI executive director Tim Gray tells it, the clean-up campaign was stopped in its tracks two years ago, when several of the property owners contacted Schlichtmann. "He came out and gave his typical Jan Schlichtmann speech that he's been through it all and knows it all, and we should be negotiating with GE rather than suing," Gray says. In what Gray describes as "a very arrogant phone call," Schlichtmann leaned on him to agree to a deal with the mayor to negotiate with GE, which Gray refused to do. Soon after, Gray says, the pro-Schlichtmann property owners splintered off to form their own group, Get REAL (for Residential Environmental Action League). Schlichtmann promised them that GE would begin negotiating in a matter of weeks; in fact, Gray says, the property owners are still waiting.
"The bottom line is that all that power kind of dissipated when that group split in half," Gray says. "To me it was a great tragedy."
That's not at all how Schlichtmann's supporters in Pittsfield see it. Roberta Orsi, a co-leader of Get REAL, says she and some other property owners were uncomfortable with Gray's confrontational approach. "We felt we shouldn't have to stand in the street carrying picket signs and wearing Tyvek suits to get the attention of the public," Orsi says, adding that she and others decided to call Schlichtmann "out of the blue." He came out on several occasions, helping Get REAL to organize itself and to articulate what the residents wanted. Never, she adds, did he ask for any kind of payment. "He believed in us more than we believed in ourselves," Orsi says. "I think we all came away feeling very energized."
Ironically, though, Get REAL has ended up having to do exactly what Schlichtmann had hoped to avoid. "After lots of slaps in the face from GE, we have realized they are not a socially responsible company," Orsi says. Get REAL hired a lawyer and has filed suit against GE. Schlichtmann is not participating in the suit.
Schlichtmann's record is equally mixed in Toms River, New Jersey, where he was hired several years ago by families affected by brain and central-nervous-system cancer and leukemia, which they fear was caused by chemicals dumped by an array of industrial polluters. Schlichtmann has held off from filing a lawsuit, arguing -- as he has in Pittsfield and Salem -- that the problem could be resolved more quickly if all parties would sit down and talk.
Joseph Kotran, whose young daughter, Lauren, is slowly recovering from the neuroblastoma she suffered from as a baby, professes faith in Schlichtmann and patience with his approach. "I think he's on the right track," Kotran says. But he confesses that, after years of negotiations, not much has happened. "A lot of times there's been frustration, because the families would like to see things move more quickly than they have," he says. "It's a fight the whole way. You have to fight for everything you get." Indeed, Schlichtmann himself concedes that the Toms River negotiations may end in exactly the sort of confrontation he's been trying to avoid. "It may very well end in the next several months with no resolution that's satisfying to anybody," he says, "and we'll have to go to litigation."
Which raises an uncomfortable question. Lawyers always try to negotiate settlements before trial. Schlichtmann attempted to do just that in Woburn. How does the let's-sit-down-and-talk approach Schlichtmann now advocates differ from what lawyers do every day? And how will that play out in Salem?
Like most elected officials, state representative Doug Petersen, a Marblehead Democrat, is careful with his words. He hems and haws about Schlichtmann before deciding to say this: "I always felt Jan Schlichtmann was with us. I always felt Jan Schlichtmann was looking for the same goals that we were. And I was frankly shocked to see him at a PG&E press conference extolling their plan. I have positive regard for him, certainly no malevolent feelings toward him. But figuring he was a sophisticated fellow, I just didn't get it. I think he's damaged his environmental credentials." Petersen says he was especially shocked by Schlichtmann's action given that PG&E had not yet announced a plan to clean up Brayton Point. (An emission-reduction plan for Brayton Point, estimated by company spokeswoman Lisa Franklin to cost several hundred million dollars, was announced at Tuesday's news conference.)Schlichtmann certainly understands the problems inherent in PG&E's proposal, and the problems he has created by making common cause with the company. He calls his decision to endorse PG&E's plan for the Salem plant "the first step in a long journey." "I'm always subject to change," he says. He acknowledges that he has angered his former allies: "Right now there's a great deal of tension between me and a lot of the others." When asked what role he can play given that no one has followed his lead, he responds, with some humility, that he's not sure himself. But he speaks eloquently about the new paradigm he's embraced as a result of his Woburn experience. "I've been talking about this approach, this kind of civilizing power," he says. "It's not just about civilizing each other, it's about civilizing ourselves."
Yet in Erin Brockovich, negotiations with PG&E were going nowhere until someone produced a document that proved to be the smoking gun. In A Civil Action, there was no smoking gun and, ultimately, no victory.
In a culture bogged down with lawyers and litigation, Schlichtmann's call for a less confrontational, more civilized approach is enormously appealing. In the end, though, it may not be realistic. Large corporations are not going to sit around the campfire singing "Kumbaya" if they think they can win, or at least stall until the other side has exhausted its resources. Likewise, ordinary people who think they've been injured by corporate irresponsibility will go shopping for another lawyer if their first lawyer urges them to settle for the sake of civility.
Jan Schlichtmann learned a great deal in Woburn. But in the end, those lessons may be applicable only to him.
Maybe he can at least talk PG&E into letting Lynn Nadeau and her fellow activists stand on the grass. After a while, the concrete gets to be hard on your feet.
Dan Kennedy's work can be accessed from his Web site: http://www.shore.net/~dkennedy
Dan Kennedy can be reached at dkennedy[a]phx.com
Articles from July 24, 1997 & before can be accessed here
