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Man of Action: A Talk With Jan Schlichtmann
By Stephen Hochbrunn, NEIWPCC
If you’ve read A Civil Action, Jan Schlichtmann is one lawyer who needs no introduction. The 1995 book chronicled Schlichtmann’s obsessive, dramatic pursuit of a major settlement in his lawsuit against companies accused of contaminating drinking water in Woburn, Mass. The book made Schlichtmann famous—and that fame grew when John Travolta played Schlichtmann in the 1998 movie based on the book. Since the Woburn case, Schlichtmann has continued to practice law from his office in Beverly, Mass., occasionally engaging in high-profile legal battles such as a recent lawsuit against the Massachusetts Turnpike Authority for using turnpike tolls to finance Boston’s Big Dig project. Given his central role in perhaps the most well known water contamination case in U.S. history, we figured Schlichtmann would have some interesting things to say on water issues and resolving water conflicts. We were right. He spoke with us by phone from his Beverly office on June 12.
iWR: Since A Civil Action you’ve no doubt had a great many water cases, issues, and potential litigation cross your desk. How have those cases changed, if at all, since Woburn? Have you seen any trend, anything that might point to an improvement in drinking water source protection?
Schlichtmann: Oh, I think there’s absolutely no question about [an improvement]. Perhaps the greatest benefit from Woburn has been the focus of public attention. The case itself and the stories, the movie and all the public focus on it, really did a great deal to highlight and emphasize the importance of water source protection. The fact that contaminated water can fundamentally affect a community’s health, the public awareness of that, all came through the popularizing of the Woburn story, to a large measure. That has been very gratifying for the families and for all of us who represented them. I think that’s probably their greatest gift to the world—that public focus and awareness of how contaminated water supplies can profoundly affect public health.
iWR: So have you seen fewer cases?
Schlichtmann: No, I wouldn’t say I’ve seen fewer cases. What I’ve seen is a heightened sensitivity and awareness that has made communities more proactive and more likely to intervene at an earlier stage than was the case before Woburn. In the past, contaminated water supplies would go on for decades before they would be caught. That’s what happened in Woburn, and it happened in Toms River, New Jersey, a case that arose at roughly the same time involving chemical contamination of a water supply. Since those experiences, there’s definitely a far more heightened awareness and, no question, communities are intervening at an earlier stage to prevent pollution of their water supplies or to stop the use of a water supply once it’s become contaminated.
Certainly we have a lot more testing going on. One of the big achievements in this decade has been the introduction of comprehensive testing of many water supplies on a regular basis, which was not the case before. The usual scan of water contamination was a bacteria-based scan, and the standard water quality measures that people were used to. But there was not a real emphasis on chemical, pesticide, or even radioactive testing. All that changed about a decade ago in many places. So there’s no question that communities are getting far more information in a more comprehensive fashion than they ever were before, so that ignorance is no longer the excuse for not protecting your water supply. There are a lot of tools out there for mandated testing protocols that were just not in place before. That’s a tremendous benefit to communities.
iWR: When you got into the Woburn case, you had no idea of its potential impact, did you?
Schlichtmann: My goodness, no, no. I could not have imagined in my wildest imaginings, and I have wild imaginings, where the story would lead when the families first came into my office to tell me their personal story. I had no idea. I had no idea that this was just a symptom of an underlying problem, that they were telling me a story that was profoundly affecting communities all over the country and all over the world. I had no idea at the time. It’s been an educational journey, an enlightening journey, into all aspects of life and society in ways I could never possibly have imagined.
iWR: You were heavily involved in the successful effort to clean up the toxic fly ash from the Salem [Mass.] power plant that had polluted Wenham Lake, the water supply for your hometown of Beverly. What did you learn from that experience?
Schlichtmann: That was really an opportunity for me to apply the lessons learned in Woburn. I was fortunate to work with some very smart concerned citizens and [Mass. State Representative] Lori Ehrlich, and together we were able to apply the lesson that there has to be an organized group of people who, with focused attention, reach out to the public and form partnerships with the state, local, and federal government. They have to be willing to go out in the field themselves and collect data, and not demand it of others, in order to bring out facts that people can’t deny. They have to propose how the parties involved can, rather than fight over things, sit down in mutual respect to deal with the problems, to acknowledge what they are—that is, what they really are, not as you fear they are, or hope they are, but how they really are—and be willing to share information with each other, and not take entrenched positions. To actually listen as well as speak.
Now all that may sound like the simple, normal things that human beings should do to solve problems, but when you’re a lawyer, it’s not that simple. It took me a few decades of my practice to figure that all out. So when it came to Wenham Lake, I applied the lessons learned, and it worked to great effect. We formed an organization, the Wenham Lake Watershed Association. We went out and formed alliances. We went out to the field to collect information and data, went out to the ice floes of the lake and drilled holes through the ice, stuck a polycarbonate clear tube through the ice and down into the sediment and got several feet of fly ash that we could show people. We invited legislators and the press and regulators out on the ice floe with us and over a hundred people were there, and we were able to demonstrate to them that we had a really serious contamination problem. And then we proposed that we have a technical advisory committee to sit down and talk about these things. The [Mass.] state environmental agency to its credit agreed to head that committee, and there was no litigation, no fighting, just a lot of discussing and haranguing, and all in a situation which the people listened to each other and worked together to solve problems.
It was a very gratifying, enlightening, and very, very positive experience that led to a great, first-of-a-kind cleanup of the fly ash in our water supply. Now the lake is able to become the drinking water machine, the clean drinking water machine, that nature intended it to be. It was a complete success story where everybody worked together, not to fight over things but to actually figure out the most economical and efficient way to right the pollution of the past. So I know these things work, a hard earned lesson there of Woburn.
iWR: The cooperative process, collaboration, that’s what we at NEIWPCC do, bring parties together. So we always advocate that…
Schlichtmann (interrupts): There’s no alternative to it. The alternative to it is an irrational one that offers no hope for the future.
iWR: And to be clear, that alternative is?
Schlichtmann: That we fight over it. And we spend all of our resources pointing fingers, fighting, blaming, ignoring, denying, and then we become more disaffected, and the problem doesn’t go away, and this unbelievable resource that’s our life blood is then further neglected because we can’t figure things out. So we have no choice in the matter. We need to have mutual respect of each other in order to understand that this is the resource all of us share, and so since all of us need it, all of us share it, all of us have responsibility to preserve and protect it for our generation and for the next.
iWR: But are there forces at work that sometimes push parties towards litigation? Seen just from a lawyer’s perspective, you can’t always be doing pro bono work, right?
Schlichtmann: Well, but it’s not pro bono work, that’s the point. I did not do the Wenham Lake Watershed Association as a lawyer; I did it as a citizen living here in my own community. But I certainly represent other communities in which I am doing it as a professional who has to earn a living. And I have been successful in helping communities. There have been recoveries, and I have been well paid for my efforts. Nobody need stay up late at night worrying about whether I’m going to get paid if I help solve a problem. I will get paid if I help solve a problem.
But yes, there’s no question that there are lots of economics that can push people apart and make people think there’s money to be made in conflict. And you know, there’s no monopoly on that on any side of the equation. There are all sorts of perceived economic advantages that led to the problem, that lead to the problem being denied, and that lead to people saying “Well, I don’t have to deal with it” or “I shouldn’t deal with it” or “I can’t deal with it” or “We can’t afford to deal with it.” All of those are the excuses that human beings give not to be honest with each other. I have found in these situations that when you can pierce through that, when there is cultivated leadership from well meaning folks on all sides of the issue, when they can come to one place at one time and sit down at a table, they’re more than halfway home. As soon as they do that, as soon as they agree to meet and talk to each other, the magic happens. The first meeting leads to another and to another, and as long as they’re meeting and talking, information is being transferred, relationships of trust and confidence are being built, and information is being shared so that facts end up on the table that everybody has to look at together. Human beings who are stuck together with a problem naturally move to the next stage, which is “OK, what do we do about it?” Because we don’t like to be stuck. We want to go on with our lives, and unless we solve these problems, we can’t.
I’ve been very encouraged to see this process happening all over the country. And in those places where the folks get it, problems get identified, relationships get built, and those communities thrive. And in those communities that don’t get it, that prefer to fight over problems, ignore them, deny them, and mistreat each other, those communities continue to decay and rot. They’re in the downward spiral.
What we’re really talking about is encouraging healthy discussion that leads to healing. You can look at the pollution of our water as a symptom of an underlying pathology. It’s the sore that we need to heal. Or it’s like a cancer that can metastasize if it isn’t treated. Pollution unchecked spreads, and more things become contaminated. And we contaminate each other in our relationships with mistrust, mistreatment, and lies. And it’s the lies that the Woburn families taught me are the things that really will kill us. When we treat each other with respect, and we make the truth the common coin of discussion, that’s when we acknowledge problems, and then we work towards their solution. It works every time.
And at the end of the day, what you find out is that’s the best economics. Because sustainability is the only economic system that’s worth anything to us. If it’s just one side getting advantage, it’s always short-term, and it’s always bankrupting. We all need to share this planet, its water, its life-giving source, or we all threaten each others’ existence. When we treat each other with respect, we’re better for it. Communities thrive. We handle the resource better. It costs us less money. There’s less disease. There are fewer problems. There’s less conflict, and less conflict is less expense.
iWR: Are you seeing this type of process play out in Wilmington [Mass.]? We understand you’re representing families there in a case with many similarities to Woburn.
Schlichtmann: Yes, in Wilmington, they have come together and formed a very strong grass-roots organization, and they’re dealing with a longstanding contamination problem in a very open and honest way. They are working with the companies responsible to try to determine the appropriate cleanup technologies. We’re hopeful that there will be a health study coming out, probably in the next year or so, determining whether there was a connection between the contamination and the unfortunate levels of childhood cancer in that community, which are very similar to the levels in Woburn, very disturbing. The community’s working together, and I am very hopeful the truth is going to come out in a helpful way for dealing with the extensive pollution that has compromised their water supply.
iWR: But we continue to see conflicts in water cases, as in Boxford [Mass.], where a battle over road salt contamination has ended up with the town and the state on opposite sides in court. I know you advised the concerned citizens in Boxford to form an association, which they have done, but you don’t have a formal role with their effort. Still, what do you make of the situation there? Is there hope on your part that everyone can come together and work together toward a solution?
Schlichtmann: Well, I always have hope, and that was certainly the message I was delivering in Boxford, and I believe that many of the folks there embraced that ideal. The devil’s always in the details. Nobody should think that it’s as easy as saying “We’ll do the right thing,” and then you go and do it. It’s always very tempting for all of us to go back to the default position of confrontation. “I’m right, you’re wrong. You’re not listening, so I’m going to impose my will on you.” It’s a little more challenging to say “Well, I have an interest, but what is their interest? And let me try to understand the world from their perspective, and maybe I can figure out how we have a common self-interest.” Once you can plug into the common self-interest that binds people together, that makes a community a community in reality, not just name. That’s the secret.
It’s all too easy for us to go to the default position of conflict. I certainly see a history of that, a long history of that, too long a history of that, in Boxford. The question is, will they find their way out of the forest, which is dark right now? You know, there are always plenty of reasons to be hopeless, to be angry, to be frustrated, to not have trust or confidence. You have to figure out those things that can channel the anger and the frustration into positive, constructive energy, and that can look for the seedlings to encourage healthy growth. Those are the things that sustain and unite people. But all too often in our rush and in our blindness we trample those seedlings. They never get to grow, and we’re all the poorer for it.
That’s the challenge. It’s hard. It’s really hard. I’m not suggesting to anyone that it’s easy. That’s the challenge I have when I go to any community. “How do we find the healthy growth here? In our own group, who among us have positive leadership capabilities?” Every community has natural-born positive leaders. Many also have natural-born negative leaders, and the negative leaders can be extremely destructive. Nobody has a monopoly on positive leadership. And nobody has a monopoly on negative or destructive leadership. You want to encourage positive leadership, and you want to form partnerships with likeminded, well-meaning people who are involved in the problem. They’re in government—local, state, and federal—and they’re in the private sector. You have to find them. And you have to then reach out to the public to encourage a healthy discussion so that the problem, the reality of the problem, can become real to people.
Most of the time we ignore reality. We pretend it’s not there, and we go on about our busy lives until our children get sick, we get sick, our community gets sick. So we have to figure out those ways that encourage healthy discussion and focus, so that we can sift the wheat from the chaff, what’s real from what’s fake, and we all do that by helping each other. When we do that, the solution to the problem just rises right to the surface.
I’ve been absolutely amazed at how this works even for problems that you think are intractable. Before Wenham Lake, there had never been, in the history of our country, a community that had gotten a cleanup of a lake from fly ash. Never. Never occurred. We were the first. The reason why is because there were a lot of good people on all sides of the issue, and they were all bonded together, and we crowded out negative thinking. Only positive thinking could take root, and it did and it flourished. A problem was solved to everybody’s credit, everybody’s satisfaction.
That’s the challenge every community has with these pollution problems. And unfortunately, it’s not easy for all too many of us, myself included. I had to be slapped upside the head by Lori Ehrlich. I live in this community, but I was too busy running around the country helping other people deal with pollution to even think about my own community. I was too tired when I came home. And she said, “Hey, you have a problem right here.” We all need to help each other, acknowledge when there’s a problem in our community, and work together to solve it. We don’t want to do it, because we have better things to do. We don’t like to identify problems we don’t think we can solve. But we can solve them. If we have the will, we’ll figure how best to do it with the limited resources of time and money and energy that we all have.
iWR: But what if there is one party that gives off the impression it doesn’t want to work together? In Boxford, for example, many residents with salt-contaminated wells sense nothing but intransigence from the Massachusetts Highway Department, which spreads the road salt that they say is the cause of their woes.
Schlichtmann: You know what? This is so interesting. Yesterday [June 11], the Massachusetts House and Senate overwhelmingly passed the Transportation Reform Bill, which is now going to completely overhaul the state’s transporation system. MassHighway is no longer going to exist in its present form. And that becomes the opportunity. With this change in people and change in structure, and change about doing things, you begin to see possibilities that you didn’t see before. MassHighway is not monolithic and unchanging. It’s an organization of people, an institution, and that institution right now is going to be transformed. What better time than during the transformation process to establish a better and healthier relationship?
You just have to be sensitive and open to exploiting opportunities, as opposed to saying “Ah, they’re not going to do anything about it. You can’t reason with them people.” That gets us nowhere.
iWR: Aside from your legal work with communities and other clients, what else do you have going on these days? We know you’re busy with the Legal Broadcast Network, which you co-founded, but what else is happening?
Schlichtmann: Well, there is something, yes. There are some legislators who have introduced legislation in Massachusetts this year—the Claimants Trust Act, which is a trust vehicle that I have been using in Wilmington and all these other cases. It’s a court-supervised and court-recognized vehicle that allows people who are caught up in a problem to come together and become a legal entity in which they’ll be able to speak with one clear, strong voice about a problem and how it can be solved. It’s just like people come together to form corporations, and they do incredible things. It has been recognized by the courts in Massachusetts and in several courts around the country, and we’re hoping to have a statute passed here and elsewhere that will be a model and provide people with a legislative cookbook about how to make themselves real. Because while these problems are felt on an individual basis, it’s not until individuals who are commonly affected all get together and share information and come up with common strategies that the problems can get solved. So I’m hoping that Massachusetts will pass the Claimants Trust Act this year, and there’ll be hearings about it in the fall. I’m hopeful that the legislature will respond and actually give people a legal vehicle to give voice to their concerns.
iWR: We’ll be watching. Mr. Schlichtmann, thank you for your time.
Schlichtmann: Thank you. It’s been a pleasure.