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Jonathan Hafetz

Hi, I'm Jonathan Hafetz, and welcome to Law on Film, a podcast that explores the rich connections between law and film. Law is critical to many films, film, and tells us a lot about the law. In each episode, we'll look at a film that's noteworthy from a legal perspective. What issues does the film explore? What does it get right about the law and what does it get wrong?

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Jonathan Hafetz

How is it? How is law important to understanding the film and what is the film teaches about the law and the larger social and cultural context in which it exists? This episode will look at Todd Haynes, his 2019 film Dark Waters, which tells the real life story of how a lawyer, Rob Bilott, played by Mark Ruffalo, waged a 20 year battle to hold the DuPont corporation accountable for contaminating a local water supply with carcinogenic chemicals that poisoned tens of thousands of people.

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Jonathan Hafetz

While Bilott is ultimately able to achieve some degree of compensation and justice for the victims, the film shows the challenges of litigation against a powerful company bent on denying responsibility and covering up its misconduct. Joining me to discuss Dark Waters and the World of environmental litigation is Mark Templeton. Mark is clinical professor of law and director of the Abrams Environmental Law Clinic at the University of Chicago Law School and research affiliate of the Energy Policy Institute of Chicago.

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Jonathan Hafetz

Previously, Mark was a trustee and executive director of the Office of Independent Trustees for the $20 billion Deep Water Horizon Oil Trust. He also served as a cabinet level director of the Missouri Department of Natural Resources, leading the state's efforts in energy, environmental protection, state parks, and water resources. Mark's prior experience additionally includes serving as associate dean and CEO at Yale Law School, developing environmental and sustainable city strategies at McKinsey and company, and serving as special Assistant and senior advisor to the US Assistant Secretary of State for democracy, Human Rights and Labor, and an advisor to the US delegation to the UN Commission on Human Rights.

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Jonathan Hafetz

Last but not least, Mark and I were colleagues way back when at Yale Law School, where we worked in the International Human Rights Clinic together. Mark, welcome to Law and Film. It's great to have you on the podcast.

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Mark Templeton

Thank you. I'm so excited to be here.

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Jonathan Hafetz

So the case begins with Rob ballots, representation of Wilbur Tennant, a cattle farmer from Parkersburg, West Virginia, played by Bill camp, who sees his animals getting sick and dying because of contamination in the water. The lot's an environmental defense lawyer whose specialty is defending companies, including chemical companies like DuPont. At first ballot, resist the offer to become Tennant's attorney.

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Clip

To call it an agency on guns. What it is they tell my brother. I mean, no chemicals, just trash. But wigs. Stupid. Made them videotape myself all and probably lay their poison in the creek. Kill him. I'm in the middle of a meeting, so I want a lawyer. Every day I'm on in Parkersburg. Together they take my case.

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Clip

They're all scared shitless of DuPont. Well, I'm scared to know about it. Kathleen is a paralegal. She's going to give you a directory of lawyers. That's why I call you that lawyer. What my neighbor tells me. Go. I am applying for grants on some fancy environment lawyer down in Cincinnati. Sir, I am a corporate defense attorney, so I defend chemical companies.

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Clip

Well, I can defend my, 30s time. I'm sorry, Mr. Dannon. I can offer you a referral, but I'm just. I just don't see how I can be of any help. You can start by watching them for a long time. I'm sorry. I wish you all the luck. Oh, no. You did a lot. But I need your help.

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Jonathan Hafetz

Why does Boehlert then decide to take Tennant's case?

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Mark Templeton

You know, that's actually a great question, because by a lot, I think you said kind of works for a major what we would call white shoe law firm, a leading law firm in Cincinnati, Ohio, that really focuses on defending corporate clients and helping corporate clients with transactions and does not represent individuals like, the tenants. It's interesting. I mean, Ballard had just made partner.

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Mark Templeton

And so at one point, in the movie sort of says to his mentor or boss, like, well, I'm, I'm a new partner. I'm supposed to bring in business. Although, of course, I'm not sure exactly the kind of business that was supposed to bring in. I think it was a couple of things. Tenant is from a Parkersburg, West Virginia, but lot's grandmother is from Parkersburg, West Virginia.

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Mark Templeton

And this is a scene where you see how a lot had spent time in Parkersburg when growing up. And actually Ballard had moved around a lot. I think it was like, you know, 12 times in his first 15 years or something like that. And so I think if you think about it that way, that, you know, Parkersburg and his grandmother made them like one of the really kind anchoring pieces of his life.

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Mark Templeton

Obviously, the tenants themselves and what they were facing was huge, too. So he actually goes and visits the farm tenant, gives him a tour of the farm, shows him impacts that point, alleged impacts of the contamination. And I think it really kind of strikes a chord in Rob's heart that he is supposed to, you know, kind of why you become a lawyer.

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Mark Templeton

I mean, I guess people may become lawyer to become corporate defensive lawyers, but I think the idea of going to law school and becoming a lawyer is that you can actually help people with real problems and these kinds of connections. So I think that kind of series of reasons, plus I think over time he becomes increasingly indignant about what happens.

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Mark Templeton

And so that kind of like locks him in.

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Jonathan Hafetz

Yeah. It's interesting. He sort of sells this to the firm as a, it's like a little case for, like a family friend.

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Mark Templeton

A mere property dispute, or something like that. Yeah. Targeted. Right. It's gonna be a targeted case against, DuPont, who, at least in the movie the firm has just been wooing. Right. They've just had. I think the general counsel speak to a partners meeting, and there's a joke about how DuPont essentially is like the big whale that they're chasing the idea of, like, oh, it's good to file this small lawsuit.

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Mark Templeton

Yeah, yeah, right. Like that's not going to go. No, that's their.

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Jonathan Hafetz

Famous last words. Yeah. Well, it changes a lot of ways. We'll talk about. So there's a chemical right. PFOA which was also referred to as C8. And this chemicals like described by DuPont or viewed by DuPont as a miracle chemical, they name it Teflon.

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Clip

There is a manmade chemical. It was invented around the Manhattan Project. It repelled the elements as opposed to water. So they used it to make the first ever waterproof coating for tanks is indestructible. And some companies thought, hey, why just battlefield? Why not bring this chemical into American homes as well as US companies? So they took this chemical PFOA, they renamed it C8, and they made their own impenetrable coating, but not for tanks.

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Clip

For pans. They called it Teflon, the shining symbol for American ingenuity made right here in the USA in Parkersburg, West Virginia.

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Jonathan Hafetz

Why is this chemical so important and valuable to DuPont?

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Mark Templeton

I kind of hate to use a cliche, but it really is a double edged sword. And perhaps the sharper it is on one side, the sharper it is on the other side as well. In some ways it is a miracle chemical, right? The chemical can be applied to surfaces and it has, properties such as water repelling, which means that it's stain resistant.

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Mark Templeton

As the story goes, we kind of initially applied to tanks and other military equipment, during World War two, where it was very helpful and useful in battle. And then the idea was, well, we've got this chemical, and what can be done with it, right? Kind of in the postwar environment. And the idea of nonstick gets marketed as Teflon nonstick pans and all sorts of other things.

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Mark Templeton

And so, you know, is another example. This is actually, made by three M, which is another company by chemical company called Scotchgard. And I remember how boots that was had Scotchgard. Gore-Tex. Right. Has an equivalent of Scotchgard in its rain jackets. So that's just the consumer use side of things, much less all sorts of kind of industrial and commercial uses as well.

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Mark Templeton

So that's like the for those purposes, it's fantastic. But what makes it fantastic is again, kind of the other edge of the sword, which is that it doesn't break down very easily. And when it does break down, it kind of takes a long time. And, let me just go back and see if there are whole variety. Thousands and thousands of variations of this chemical.

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Mark Templeton

And when it breaks down, it's variations of this chemical break down, you can end up with other versions that are essentially kind of equally toxic, right, as well. So this is kind of the miracle of modern living, right? That it's come back to bite us.

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Jonathan Hafetz

Yeah, exactly. And what happens that is it turns out that DuPont. Right. The real problem like are a number of problems. But the real problem in the movie is they're pumping PFOA powder into the Ohio River and PFOA lead sludge into unlined pits at their factory in West Virginia, which then seeps into the groundwater. And, of course, you know, the other problem on top of this is DuPont knew there was a problem.

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Jonathan Hafetz

And so PFOA enters a local water table which supply drinking water to Parkersburg and several other localities, which affects, they say, maybe around 100,000 people.

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Mark Templeton

Right? That's right. And just to add one thing to it as well. So DuPont had buried I mean, you're right, they, put up the dust in the air. They put things kind of into the Ohio River. And then they had, landfilled a bunch of it on site at the Washington Works site in Parkersburg. But then they moved it to another site, and they actually moved it to a, site that had been owned by Wilbur Tennant's brother, Jim, which is like immediately adjacent, to Wilbur Tennant's property.

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Mark Templeton

And so what happens with unlined landfills is that water gets into them and water transports the various substances that are kind of in the landfill. And so that carries into the water supply that affects the tenant's farm. And their cattle are drinking from the dog, is drinking from the people in the household are drinking foam.

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Jonathan Hafetz

And so it starts with getting the like a package of looks like VHS tapes right from tenant with all the the sick, the dying cattle. There's one when he's like is doing like almost like an autopsy on the cow. Yes. That's right. So he sees there's a problem there. How does blot learn or uncover the wider problem.

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Mark Templeton

And so he uncovers the wider problem by again, somewhat miraculously, getting approval from the partner who he works for, you know, filed this targeted case. Then he moves into what's called discovery. And so discovery is a process by which lawyers are able to request information. It's basically the fact gathering part of building a legal case. Lots of different things can be done in discovery, but one of them is, documents.

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Mark Templeton

And so but that kind of was like working through the issues initially, like there's kind of like, no, they're there because he asks DuPont to provide information about hazardous substances, but, C8 had not been declared hazardous by U.S. EPA. So in a very lawyerly narrow reading this, according to the movie, DuPont did not hand over those documents.

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Mark Templeton

But the Latin curve has this realization. Oh, okay. Right. Again, it's not regulated, so maybe they're not handing it over. So then he basically asked for every document, and DuPont gives him a lot of documents. I think the reality is that they actually didn't turn over every single document at that point in time. There's a longer term process and a lot in a book.

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Mark Templeton

He wrote, talks about how he had to get documents kind of later, but in the movie it's very dramatic. He gets boxes and boxes of documents, and then he just starts digging through them and starting to organize them. And that's how he kind of follows the chain and builds a map of what happened, the larger map of the issues of C8, how DuPont knew how they had provided, C8 to workers at the factory, like in cigarets.

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Mark Templeton

As part of a study, he learned that there were people who had worked, women who had worked on the line, who actually had birth defects in their children, etc., etc. and he sees all of these kind of official documents from DuPont about this.

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Jonathan Hafetz

They have the picture of all the boxes being delivered, and then, you know, they cut out the months and months and months of actually poring over them. And then you get to the discovery from the discovery, which is, but, I mean, an incredible amount of and just time that he had to put in and, and this leads, this is litigation and advocacy to expand.

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Jonathan Hafetz

Right. So as he gets more information about what's going on, his litigation advocacy, expand with the EPA and in the litigation. So how does he build on what he is learning?

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Mark Templeton

Yeah. So he represents tenant. And so he means to represent kind of his immediate client. And he ultimately reaches a settlement. Right. That presumably works for, his clients. But there's a scene in the movie where basically has the settlement agreement is being inked. He's provided reams of information, to EPA and others to kind of alert them to this particular problem.

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Mark Templeton

And so that's kind of, you know, how he starts to get the information out about, the substance. He also files a class action lawsuit, which is where he really ends up contact. You know, you reach out to everybody who's a potential class member as a part of that, obviously get a ton of publicity associated with that. And so that's kind of where it becomes uncorked and becomes kind of a much broader piece, as well.

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Jonathan Hafetz

And so this is also where we talked about the case. You know, mere property disputes becomes an entirely different animal. And this creates some tensions within the law firm. The law firm in Cincinnati, Ohio, you know, you described as the right the white shoe firm, which right also has close ties to the Taft political dynasty in Ohio, cofounded by two sons of William Howard Taft, former president, and included the U.S. Senator Robert Taft.

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Jonathan Hafetz

So we're talking about, you know, like a very white shoe firm if you are very establishment firm.

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Mark Templeton

An insider firm, right. I mean, you can't imagine anyone that comes out of power as close to power. It is about power. Absolutely. And representing power and the interests of power.

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Jonathan Hafetz

Exactly. And so there's a meeting, right? I think where partner meeting where they are going to decide whether or not to take the class action, right, whether or not he's, you know, he can go forward black and go forward and to get approval. And a lot has to pitch it to the firm. His supervisor, the senior partner you mentioned before, it seems Tom Tucker, played by Tim Robbins, is sort of kind of in the middle, right, to determine, you know, what's going to happen.

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Jonathan Hafetz

And there's some, you know, real tension going on about whether or not to take the case.

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Clip

Kate, file accumulates, it builds up inside of us. Some class members who are sick today will get sick tomorrow. We need a way to protect them into the future. Jesus, Tom. If you're even thinking about using medical monitoring. Medical monitoring is a claim now permitted in West Virginia courts. Let's hear him out. It says if a company exposes a community to something that makes them sick, they must monitor the health of that community indefinitely and really get that you're creating liability for your exposure.

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Clip

It's also unprecedented. Exactly. Which is why not six months ago, we fought tooth and nail against it. And you lost. Our clients have the right to avail themselves of the law. Attend to your clients. Okay. I know you. I know your passion. You got a great settlement from your farmer. You should be proud of that.

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Clip

And perhaps as the newest partner at this table, I should be more circumspect. But, what he's proposing here is nothing less than, a shakedown of an iconic. We do not represent DuPont. No, you don't represent anyone. Is this what we have become? Plaintiffs attorneys, ambulance chasers? I mean, why don't you just a minute, Rob, you want to flip?

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Clip

You want to take everything that you know about how chemical companies operate and turn it against DuPont like an informant. That's enough. Isn't that right? Okay. They're right. They're right. Yes. Oh, okay. Then I say we take a vote and determine whether or not we continue in the tradition that has distinguished this firm from everyone else. Okay, I'm ready for this meeting.

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Clip

Okay. You got that? Does anyone even read the evidence? This man is collected, the willful negligence, the corruption. Read it and then tell me we should be sitting on our asses. That's the reason white Americans hate lawyers. This is a crap that fuels the rough data of the world. We should want to nail DuPont. All of us should know businesses better than this, gentlemen.

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Clip

And what is not? We should hold them to it. That's how you build faith in a system. We're always arguing that companies are people. Well, these people have crossed the line. To hell with them.

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Jonathan Hafetz

So what happens in this scene in the movie where there's this battle over whether or not to take the case and, why do or the class action and why do they ultimately decide to do it?

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Mark Templeton

It's a wonderful scene. It's kind of mind blowing. I think you would say, for many of the partners. Right? I mean, their bread is buttered, by representing big corporations, whether it's chemical corporations or other corporations, they are in the work of defense, right? Not being a plaintiff's attorney. Their opinion is that plaintiffs attorneys are just ambulance chasers, that they are looking for a maybe a quick win, because plaintiffs attorneys, get paid on contingency, they typically get paid roughly 30%.

00;18;03;15 - 00;18;35;14

Mark Templeton

So the idea is, oh, they're just, you know, chasing after maybe something for their clients, but really more for their own pocketbooks. So they're just very skeptical, right, of plaintiffs attorneys. And there's this great moment where so part of the reason that a lot brings this, to the partnership at that time, is because the local water system had sent a notice to people, who drink water from the system, saying DuPont has told us there's a low level of, the chemical in the system.

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Mark Templeton

DuPont has told us that it's safe. You don't need to worry. And blot realizes at some point that that kind of starts the clock on a one year statute of limitations. But so there the statute of limitations is, you know, you can't sue after a particular period of time. I mean, they're socially beneficial reasons for statute of limitations generally, so that like, the things get settled and we move forward with our lives and, and all of those kinds of things, in this case, the company, at least according to the portrayal in the movie, was being very devious and underhanded and starting the clock.

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Mark Templeton

So one of the great pieces of the movie is where the plot explains that one of his partners and his partner says, oh, that's great. We would have advised that I it's like, yeah, exactly. People get it. There's another great part where the actor, William Jackson Harper, I don't remember the name of the character in this particular or the person in this particular movie, but I think of him, this kid from The Good Place, and he's just become partner and he basically says, look what are you doing here?

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Mark Templeton

Right? I mean, who do we represent? I mean, essentially we saying, like, what kind of firm do I become a partner in here and really starts to dominate the meeting? And then Tim Robbins kind of character, Sarah says, no, no, no, no, and then gives a monologue, which is just the point that like kind of hearkening back to what I said at the beginning, like, why do people go to law school?

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Mark Templeton

Part of why they go to law school is to do justice and to have the opportunity to do justice. And what I like about Robbins speech also is that it's like, well, what he says is corporations are not inherently evil, right? They're not bad. They can do good things. But when a corporation does bad things, you should be going after those bad corporations because, you know, the rotten apple spoils the whole bushel here.

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Mark Templeton

And so in the movie, it kind of like it closes the scene as it should do dramatically if one wonders what it was like actually in the partnership room. Of course, but it's I mean, there are many great scenes in this movie. I love it, but I feel like that is a, I've never been a corporate lawyer.

00;20;31;24 - 00;20;42;20

Mark Templeton

I've never been in that role, but I could so easily see that conversation, happening, although maybe not the last part. Richard Robbins Kerry was like, we gotta do what's right here.

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Jonathan Hafetz

No, exactly. I mean, there's a sense of, like, they crossed the line, right? Like, exactly. I mean, a lot of what they do, and they they need lawyers. They do a lot of compliance work. I think they did a lot of the firm I did a lot of work with around like Superfund, complying with the Superfund laws and regulations.

00;20;56;04 - 00;21;10;08

Jonathan Hafetz

But there's a sense, as you said, DuPont, like crossed a line and that for the preservation of the system and for what's right, you know, this was a case they kind of had to do in the Tim Robbins character in the movie. Anyway, he's able to get the rest of the partners to kind of go along, light it.

00;21;10;11 - 00;21;32;00

Mark Templeton

Yeah, I think that's right. And, you know, there is environmental lawyers who represent clients like this can provide very valuable functions, which is, you know, working with the company to come in to compliance, and negotiating, with regulators about what is an appropriate compliance approach, compliance schedule. In these big Superfund sites, you might have dozens of parties involved.

00;21;32;00 - 00;21;49;04

Mark Templeton

And so, like, which of those parties should bear what kind of responsibility for that? That all makes sense. I think the concern that you kind of see, over on the DuPont side, right, is that it seems like the lawyers are also involved, with other professionals in terms of covering up, what the company did there.

00;21;49;06 - 00;22;12;09

Jonathan Hafetz

So a key obstacle block phase is and you mentioned this before, and we're talking about discovery is that PFOA is not a regulated chemical. It's also a challenge in that block that has to try to show that tens of thousands of people have been poisoned by a chemical the federal government doesn't regulate as a toxin. How does he address this problem or challenge?

00;22;12;11 - 00;22;45;08

Mark Templeton

Brilliantly so DuPont studied C8. They did a lot of studying of C8. Thorium also did studying of C8, both in terms of exposures to their workers. There were also monkey studies. There were lab rat studies as well. All of these things showed problems in terms of cancers that developed birth defects, other issues related to organs, being not the correct sizes and not having the correct functions and all sorts of things like that.

00;22;45;15 - 00;23;12;05

Mark Templeton

And so the movie sort of says DuPont itself internally said the safety limit was one part per billion. And so Boehlert says, look, and his co-counsel, right, in the trial of, say, look, it's not it doesn't matter that there's not a federal standard because the company, DuPont itself is said that one part per billion is the standard. And again, as discussed, in the movie, at least some of the systems where it's six parts per billion or maybe even more.

00;23;12;05 - 00;23;44;15

Mark Templeton

So the idea is that they violated, that standard. So that was kind of one piece of it. The other piece that I think you were alluding to was kind of much more complicated, which was actually going out and getting the data about the impacts in these populations. And so there were about 70,000 people who ultimately participated in a epidemiological study, meaning that they gave information about their medical history and had their blood drawn to determine what the level of PFOA was in it.

00;23;44;17 - 00;24;09;00

Mark Templeton

And it then went off to a bunch of experts to kind of analyze for years. And so, at least it's portrayed in the movie. But what kind of had this brilliant insight of like, come get your initial share of the money, $400? I think it was the come get your blood, tested. And so, of course, there's this very dramatic scene in the movie where he's like, driving up and is, you know, brow furrowed and, you know, is anybody going to be there or not?

00;24;09;00 - 00;24;28;03

Mark Templeton

And then he had to park blocks and blocks away because some blocks away, because there were just tens and thousands of people who are there. So that's basically kind of the two part piece of it was, again, using DuPont's own kind of safety internal standard, and then kind of gathering the evidence about the population itself.

00;24;28;05 - 00;24;44;21

Jonathan Hafetz

And the second one, the medical monitoring. It seems like, you know, it's a key development in the case. Right? It was initially I think looks like there was some kind of initial settlement which had a much lower payout. But they add this medical monitoring piece to see what happens and discovers information.

00;24;44;27 - 00;25;06;06

Mark Templeton

Yeah. And I guess to speak about this and maybe a little bit more clear legal terms, what this did was allowed for, answering the question of what's called general causation. So there's general causation and specific causation in these kinds of toxic tort, cases. So general causation is does the substance cause a harm or the harm that you think it's going to cause.

00;25;06;12 - 00;25;32;11

Mark Templeton

And that can be broken down further? Does it cause, you know, does any amount cause the harm could have caused the harm? Does any amount cause the harm? What kind of harm gets cast at what kind of amounts, you know. ET cetera. Etc.. And so that is kind of the general causation piece. Later when people are kind of seeking their own vindication in terms of individual trials, which ultimately lead to a settlement in this case, you getting the specific causation.

00;25;32;15 - 00;25;55;28

Mark Templeton

So Mark Templeton was exposed to PFOA. At this level, we know that being exposed at that level for this number of years can create these kinds of problems, cancers. Mark Templeton got that kind of cancer. Well then you get into the specific causation. Was Mark Templeton a smoker? Mark Templeton overweight? Was Mark Templeton exposed to other kinds of toxic substances.

00;25;56;00 - 00;26;03;05

Mark Templeton

So again, this is critical for the general causation piece, which allows for a lot of these other claims to kind of be brought down the road.

00;26;03;08 - 00;26;25;01

Jonathan Hafetz

And in the movie, you know, it's described as the largest epidemiological study to date. It's, you know, because of his, strategy of getting all these people to come give their blood, the $400 sort of payout, this massive amount of data. And they have this committee, which then sort of, you know, effectively kind of disappears behind the curtain for many years, right, to sort of sort this out.

00;26;25;01 - 00;26;33;29

Jonathan Hafetz

I mean, it's complicated, right. And they're real scientists that are working on it. And then they ultimately come up with the findings, which are devastating. We've talked about those, but yeah.

00;26;34;02 - 00;26;58;07

Mark Templeton

Maybe I could just say one other thing, too. I mean, just stepping back kind of in terms of the lore piece and how one kind of thinks about these things, really, they're kind of two ways to prove exposures to certain substances. So again, and it's finding the DuPont and three, kind of did the first part, which is they're going to do kind of specific studies on animals where you've got high doses of the substance in an animal, which is really useful.

00;26;58;07 - 00;27;19;07

Mark Templeton

On the one hand, the problem with that is that those tests end up being expensive. So you end up doing a super high dose. So you're not clear about okay, well, at lower levels, do you still have the same kinds of problems. So that's kind of a problem with the animal lab study piece. The epidemiological piece is really critical because again it kind of shows the actual exposures in the populations that you care about.

00;27;19;09 - 00;27;37;08

Mark Templeton

But you actually need a fair amount of data because there's actually a lot of noise in the system. So the fact that you actually had 70,000 people, the largest epidemiological study ever, at least of this sort, right. According to the movie, was really critical in kind of doing this other piece, because again, then you can start figuring out some of these other factors.

00;27;37;08 - 00;27;53;10

Mark Templeton

Also, if you collect other information about like whether people are smokers, etc., etc.. Again, kind of stepping back from the legal perspective, you know, a lot it's kind of marshaling both sides of the equation in order to be able to kind of move forward and, you know, seek justice for its clients.

00;27;53;12 - 00;28;10;16

Jonathan Hafetz

It poses some challenges, too, because it takes a long time. Right. And there's just sort of a period in the movie where it's it's very kind of dark period. For a the firm is like, what are you doing? You keep spending all our money on this. You know, he's having issues. Maybe in his marriage starts to suffer some physical manifestations or some symptoms because of all the stress.

00;28;10;16 - 00;28;20;16

Jonathan Hafetz

It's just a long period. All and the clients are just waiting and waiting and waiting. So from a kind of case management, client management perspective, it's a very challenging period, right?

00;28;20;19 - 00;28;40;29

Mark Templeton

Absolutely. People want to know what's going on. Right? I got this little paycheck and I got my blood drawn. And am I going to get sick or I'm sick already? Is it because of this? And the community's really divided? Also, I don't think that's something we've talked about yet too. Right. And this itself is additionally divisive, I guess, in the community.

00;28;41;01 - 00;28;59;19

Mark Templeton

And so you've got people who think DuPont could never harm people in the community. I think there was a scene where a woman says, you're not going to find anything when you draw blood to good people. And so you have people, I mean, a lot of people, but people were kind of, you know, putting their necks out there, so to speak, and they're not getting answers.

00;28;59;19 - 00;29;19;27

Mark Templeton

Right. And this is, you know, difficult, in the community, the company is still operating. Right. The Washington Works plant, etc.. And, yeah, I mean, more partnerships exist, represent their clients fundamentally, but they want to get paid. And so a lot is just is incurring cost after cost to pay to keep the panel kind of doing its research.

00;29;19;27 - 00;29;39;03

Mark Templeton

So they're just writing check after check to go into the big black box. And I think Bullard is also engaged in other activities at the same time. Right. Because he is involved in talking with us, CPA, he's involved in talking to state regulators. It's not talked about in this movie, but in his book, he's also starting to represent people in other parts of the country as well.

00;29;39;05 - 00;30;09;03

Mark Templeton

And so those those things are incurring costs too. So he is not a profit center. He is a cost sink. One of they're just kind of related to that. Law firms have been going through a lot of mergers and consolidations. So I think kind of traditionally in markets like Cincinnati or Saint Louis, where I'm from, you know, you might have three or 4 or 5 kind of white shoe law firms and then kind of another tier down and then, you know, then it gets smaller after that.

00;30;09;06 - 00;30;29;25

Mark Templeton

In the past couple of decades, we've seen a lot of mergers of law firms. Part of that is about cost savings and about making sure the partners are, you know, profit maximizing. And again, a lot is not that, and so, again, he just has a lot of pressure from his clients, from his partners, pressures at home, all of those things.

00;30;29;28 - 00;30;55;08

Jonathan Hafetz

And I'm glad. Also, you mentioned about the local dynamics. Yeah, you touched on that about how it was viewed within the community. I mean, DuPont is a major employer, right? So people are concerned about jobs related to the company, and it also has tremendous kind of political clout. And there's a scene where, you know, DuPont seems to be exercising its influence over the state regulators in West Virginia.

00;30;55;08 - 00;31;01;10

Jonathan Hafetz

So how does that kind of play out in terms of DuPont's clout with the state? And I mean, as well as the community?

00;31;01;12 - 00;31;27;25

Mark Templeton

Sure. I mean, in terms of the state, the way it plays out, is, there's a scene where there's kind of a motion to dismiss the class action lawsuit. And again, ballot and his partners co-counsel kind of come in and give a presentation about how you know what this case is about. And say, well, DuPont has its own, you know, safety standard here.

00;31;27;28 - 00;32;07;20

Mark Templeton

There is no federal standard. Reject DuPont's motion to dismiss. And DuPont says, well, actually, the state of West Virginia has its own new standard. Now for the amount of PFAs, allowed to be in water, you know, so some of these, like, very dramatic moments. I don't think that's how it would have played out in real life. I think, you know, you know, you don't get the surprise of quite like that in the courtroom, but they put on a person who is working for the, I believe, the West Virginia environmental, department and is involved in their PFAs task force, who says that the task force is recommending a new level of 150 parts per

00;32;07;20 - 00;32;27;19

Mark Templeton

billion. You know, so there's, you know, gasps in the courtroom or something like that. And but lots co-counsel al, who's a very charismatic trial lawyer type, you know, makes a joke basically about how she's, you know, if she's not working for DuPont, she's going to be, in six months or something like that. So. Yeah. Right.

00;32;27;19 - 00;32;49;15

Mark Templeton

And the DuPont is a stakeholder, right? Who was included. So I say in real life it's complicated. And they ran I mean, oversaw the state environmental agency in Missouri, part of my portfolio for Governor Jay Nixon. It's true. I mean, environmental agencies often want people to reach consensus for a variety of reasons. Not least, it's easier if everybody reaches consensus.

00;32;49;15 - 00;33;09;12

Mark Templeton

You don't have lawsuits and things like that. And so, yeah, I mean, in the sense it would make sense that the state would have a task force to look at these various issues, it makes sense that the regulated community, which is the term of art, meaning DuPont, would participate in that. But, you know, it is it is pretty fishy to say the least.

00;33;09;12 - 00;33;31;09

Mark Templeton

The task force comes up with a recommendation that's 150 times what DuPont's internal standards were. So again, so that's exactly. And I mean, that's just just how this works, right? There are just a lot of relationships between the regulators and the regulated community, the politicians who oversee the regulators, the politicians who the legislators that fund, the environmental agencies.

00;33;31;16 - 00;33;38;12

Mark Templeton

So, yeah, the regulated community always has a seat at the table. In this particular case, it seems fishy to say the least.

00;33;38;15 - 00;33;59;04

Jonathan Hafetz

And so the key dramatic moment in some sense comes after it looks like the lot has kind of hit or close to kind of rock bottom. All the stresses that you talked about are weighing on him. He's sort of in his office one day and he gets a phone call from, I guess, the head of the medical monitoring panel being like, we've reached our conclusions and they're pretty devastating, right.

00;33;59;04 - 00;34;00;19

Jonathan Hafetz

So what does the panel find?

00;34;00;21 - 00;34;20;12

Mark Templeton

I mean, the panel kind of goes through a litany of the different things that are caused by PFAs, in terms of cancers and other conditions. I am not kidding you when I say I'm getting chills. Like as we are talking about this once again, I mean, it's such a dramatic scene in the movie where, I mean, it really is rock bottom.

00;34;20;12 - 00;34;43;27

Mark Templeton

And he's right. He is right. And, he talks about how he was kind of screaming into the wind for a long time. And finally he is being validated for all of this. This kind of proves as much as one can prove through epidemiological science that all these things were kind of caused by it. And so it opens up the possibility of all of these kind of individual lawsuits, and then maybe a settlement down the road.

00;34;43;29 - 00;35;03;27

Mark Templeton

There's this scene where he's like going and finally celebrating with his family. And then he finds out DuPont is reneging on some of its commitments regarding, this. I mean, the movie doesn't kind of get, into the details. I think what's important is the idea that it was thought that as these kind of things progressed, the DuPont was not going to challenge them.

00;35;03;27 - 00;35;13;22

Mark Templeton

But then DuPont did, you know, kind of challenge them. And so, you know, from the depths of despair, he's working his way out. And then he's like, you know, these are cut out from under him again.

00;35;13;24 - 00;35;29;03

Jonathan Hafetz

And so in the movie, basically, DuPont kind of reneges right after the findings. They have like one more chick up their sleeve, so to speak, and they basically, rather than, I guess, reach a global settlement, they're going to make each litigant in the court go forward to prove their own, I guess, damages, right?

00;35;29;03 - 00;35;30;09

Mark Templeton

Yes. That's correct.

00;35;30;11 - 00;35;53;22

Jonathan Hafetz

And so it ends. I think it ends where the loss goes to court and starts winning these judgments of, you know, I think $7 million for the first few plaintiffs. And I think at the end of the movie, there's a placard which says he's won this and there's a thousand more cases to go. Now, what ultimately happens, right, is DuPont then agrees to settle the whole class action for, I think, $670 million.

00;35;53;28 - 00;35;54;12

Jonathan Hafetz

Is that right?

00;35;54;13 - 00;36;18;25

Mark Templeton

Yeah. That's correct. So what happens are happened here and happens often in these kinds of circumstances is that you've got a number of different plaintiffs who have been exposed to a particular substance or had some something's happened to them. And so you have a kind of series of individual trials. And the first one is called bellwether trials. And so the idea is to try cases that may be at kind of both extremes.

00;36;18;25 - 00;36;37;11

Mark Templeton

So what's a case that's kind of best for the defendant. Right. Where kind of speaking back to what I said before, like maybe there were several other things that could have been sources of the cancer that are kind of linked to the cancer. In terms of the first bellwether trial, the person had actually been caught or her kidney cancer had been caught early.

00;36;37;18 - 00;36;55;04

Mark Templeton

She had it removed through surgery. She didn't have to go through chemotherapy and was kind of able to get on and live her life. This is not in the movie, but this is just kind of background. And she had some other kind of health issues, arguably. And so that was supposed to be like a good case for DuPont to win.

00;36;55;06 - 00;37;13;20

Mark Templeton

And they still had a verdict of, I think, $1.6 million against DuPont. There were then a couple of other cases and the amounts kind of go up. And what's interesting was DuPont then was going to try like dozens and dozens of these cases. And literally there was an order that this is outside of the movie. But I think it's really interesting.

00;37;13;23 - 00;37;32;01

Mark Templeton

The judge, a federal judge, had set up, I think, like 40 trials to be held in the next year or a year and a half throughout the region, like even into Kentucky and other places. And that's the point at which DuPont caved and agreed to that kind of settlement, because they could already see kind of the writing, and agreed not to appeal.

00;37;32;08 - 00;37;50;00

Mark Templeton

The various cases. That was a maybe a long answer to the question, but this is not a typical of kind of the overall process where you've got these kind of individual cases, then kind of setting a price and helping to establish what the risk is for the company. And then kind of a negotiated settlement.

00;37;50;02 - 00;38;10;28

Jonathan Hafetz

Yeah. It's so interesting. And I sense from the movie that after the findings, I guess because the findings of the panel were so conclusive that lot this co-counsel was surprised that DuPont was going to kind of go down this road of the bellwether cases and not just settle it upfront that they were going to make them sort of start to litigate one by one.

00;38;10;28 - 00;38;11;16

Jonathan Hafetz

But I don't know.

00;38;11;16 - 00;38;33;24

Mark Templeton

Yeah, yeah, yeah, I think that's right. And in the first of the bellwether kind of in this, you know, story behind the story, right in the first of the bellwether cases, there were no punitive damages awarded. And so the lot and his partners then said, okay, we need to really kind of send a message to DuPont. In fact, DuPont, even according to Ballard in his book, like touted the fact that there had been no punitive damages.

00;38;33;26 - 00;38;53;17

Mark Templeton

And so it's kind of like, you know, waving the red cape in front of the the ball moving and his team. And so then they went seeking punitive damages, and they actually got $500,000 in damages by showing that the company had actual malice, which basically meant the company had been aware of the risks and acted with knowledge of the risks.

00;38;53;22 - 00;39;14;25

Mark Templeton

And so, again, kind of the writing starts to be on the wall for the company. And I've worked previously, as a management consultant and as an investment banker. And, you know, the analysts are following this, and there is a point at which it's like, okay, it's time to deal because the stock price starts to suffer and the company wants to start putting this behind them.

00;39;15;01 - 00;39;37;16

Mark Templeton

And the uncertainty can hammer the company stock price more than what the actual reality of the situation. So I think, you know, I'm not an expert at this, but my understanding is basically start to get a few of these and you get analysts sort of saying, hey, there are billions of dollars of potential risk here. Company stock price starts to take a hit and then they do a deal on the stock price goes up once it's finally concat and capped in that regard.

00;39;37;18 - 00;39;57;29

Jonathan Hafetz

So interesting the kind of business dynamics in other words ultimately what it's about. And so they agree to kind of deal. Well looking at it. So they basically when you kind of tally it up, I mean it includes the ultimate sort of result is there's a about a $16.5 million settlement with DuPont and the EPA. DuPont agreed to do things like install filtration system in affected communities.

00;39;58;01 - 00;40;10;24

Jonathan Hafetz

You've got the $670 million settlement agreement with the class, and DuPont agrees to stop production of the chemical right above PFOA. So how important were these wins?

00;40;10;27 - 00;40;43;22

Mark Templeton

So these wins are really important, but they're not the end of the story, right. This is real money that was available for people in the class to compensate them that they'd otherwise never would have had. Right. So that is clearly a good thing, or at least in my mind, clearly a good thing. But that was really dealing with, you know, for water systems in and around, Parkersburg, PFOA and Fass and others, kind of similar substances were manufactured at multiple facilities by multiple companies throughout the country.

00;40;43;29 - 00;41;13;10

Mark Templeton

And so there's kind of a much bigger set of issues at play here in terms of other places that were contaminated already, companies ability to continue to introduce, if not faster, PFOA, similar products, because, you know, again, this is the DuPont, slogan was, better things for better living through chemistry. And so they've got scientists and engineers whose job is to kind of tinker with these molecules and develop better products.

00;41;13;10 - 00;41;28;20

Mark Templeton

I mean, in a sense, hey, nothing's wrong with that. I mean, like, we all want better products, we want safer products, etc. but again, the problem is that there kind of so many different compounds that were unregulated. And so this really just meant this is kind of the beginning. Right. So these are important and have held the company accountable.

00;41;28;25 - 00;41;34;12

Mark Templeton

But it was just the start of that accountability process and the need for kind of more regulations as well.

00;41;34;15 - 00;41;53;25

Jonathan Hafetz

And so what are the obstacles then to more regulation by the EPA. Right? I mean, if they had regulated PFOA and I said a standard, one presumes DuPont would have complied with the federal standard. Right. But then done it. Right. So there was this gray area or space for them to act. And you have the Toxic Substances Control Act of 1976, which gives the agency the authority.

00;41;53;25 - 00;41;57;29

Jonathan Hafetz

So why are there so many unregulated chemicals?

00;41;58;01 - 00;42;21;21

Mark Templeton

So there's kind of the broader question, the never quite question, there, I mean, at the broadest level, in the United States, our view has generally been you can introduce things into the stream of commerce, and then we kind of find out later what the impacts are. I'm exaggerating a little bit here. I'll clarify that, more in a moment.

00;42;21;24 - 00;42;42;19

Mark Templeton

Kind of the approach in other parts of the world, particularly Europe, is known as a precautionary principle. Until you've got proof that something is safe, you can't introduce things into commerce in the United States. We have more of a hybrid approach for this. But when the toxic Substances Control Act came into effect in the 1970s, about 60 to 70,000 different chemicals were grandfathered in.

00;42;42;23 - 00;42;57;28

Mark Templeton

They were already in use or had been in use. And so people were allowed to kind of continue using them. This has kind of been one of the major criticisms, which is that even if you're requiring testing of new substances, you're not requiring testing of all these things. We've been using in the past or things which are comparable.

00;42;57;28 - 00;43;19;28

Mark Templeton

I mean, it's like very similar, to them, they largely get a pass. Another challenge is that what counts as proof, like how many studies need to be done. And again, some of the challenges of lab studies is that they're quite expensive. You can figure out if you give an animal a huge amount of a chemical, whether it's gonna be really bad for it.

00;43;20;05 - 00;43;41;11

Mark Templeton

But how do you extrapolate kind of back that's just an animal. How comparable is that to a human? And so there's just a whole complicated it's expensive. It's time consuming to do this. There are limited resources. EPA staff is limited resources. So a problem related to that is that industry actually has a lot of this information or is best positioned to actually develop this information.

00;43;41;14 - 00;43;59;16

Mark Templeton

And I mean, the movie doesn't really get into this, but one of the things I talk about when I teach toxics and toxic torts as a class are like, does this create disincentives for the companies to actually invest in figuring out what's harmful or not? Right? Because below, what killed DuPont, based on all of its internal information that its scientists developed.

00;43;59;16 - 00;44;18;12

Mark Templeton

And thank goodness they did develop that information. But now with this kind of like the more you know as a company, the more you got to share that information. Again, it creates kind of disincentives at the margin, I guess you'd say. So. Those are actually some of the bigger problems. I mean, some of the I guess you'd say kind of narrower problems are what level is safe.

00;44;18;12 - 00;44;44;23

Mark Templeton

And, you know, you could see me, you know, using air quotes around safe. Right. That requires a lot of again, additional kind of research about that. And the standards can change over time. And I would just say in general, the standards never really weaken scientifically. There may be political considerations that kind of affect these things. But at one point EPA had said that 70 parts per billion, was kind of okay for PFOA, fast kind of compounds in water.

00;44;44;26 - 00;45;18;06

Mark Templeton

And now it's down to, I believe, four parts per trillion. It's kind of what they have proposed. And one challenge is when you start getting into these really my new it amounts, sometimes you don't even have really good technologies to even like affordably test and regularly kind of test these things as well. So there's just a lot of kind of issues here in addition to its different sources of like, where are you taking it when the companies are kind of putting people's waste into water that could lead to one regulation or into land that can be a different regulation.

00;45;18;08 - 00;45;45;06

Mark Templeton

What about municipal wastewater treatment plants in the amount of P4 fast that they're putting into the water, that's it can be a different standard. What happens to the biosolids. So basically waste that comes out of wastewater treatment plants that is dried and then nutrient rich and then applied to fields. You needed a standard for that. And so you just start slicing and dicing this and it becomes this huge problem.

00;45;45;13 - 00;46;07;19

Mark Templeton

And we haven't even really dealt with the question of we have people of PFAs and equivalent things throughout our households. You know, even if we don't have nonstick pans right in the treatment, on our rugs, on our couches, the shirt I am wearing probably has some coating on it to make it more stain resistant. So how do we regulate that, given that we're all throwing things into landfills that aren't hazardous waste landfills?

00;46;07;21 - 00;46;25;09

Mark Templeton

It's a huge regulatory process and it's slow moving and it can be very contested. And in fact, EPA's proposed standards for drinking water are being contested by the American Association of Water Works and other industry groups are kind of challenging all of these things.

00;46;25;11 - 00;46;42;28

Jonathan Hafetz

And the film, you know, concludes with the note that PFOA is basically everywhere, kind of, as you're suggesting, right, because of its use and that humans, you know, all over the world, have some amount in their blood. I mean, how significant are the risks in your assessment?

00;46;43;00 - 00;47;15;19

Mark Templeton

Yeah, I mean, I think that it's a complicated question. Complicated. And that if our people kind of are everywhere, but what's the level of exposure that people are having to it? That could vary a lot from population the population in location to location, person to person. There are other factors that kind of affect these things, but it is it's kind of well known and well documented that fast kind of has a number of health problems associated with it, as we've kind of talked about before.

00;47;15;19 - 00;47;42;16

Mark Templeton

Right? There's increased risk of certain cancers, including prostate, kidney, intestine, killer cancers. It has effects related to weight or in conjunction with weight, such as increased cholesterol levels and increased risk of obesity. It reduces your immune system's ability to fight off other diseases. Low birth weight, accelerated puberty, delayed puberty. I think in other cases, bone variations, decreased fertility increase in high blood pressure in pregnant women.

00;47;42;16 - 00;47;57;22

Mark Templeton

So yeah, I mean, this is a has a lot of different and documented effects. I think the key question is how much is in the individual exposed to it. And that's going to vary a lot from population to population, location to location, person to person.

00;47;57;24 - 00;48;12;28

Jonathan Hafetz

And as you said, I mean like don't dump, don't put the info laden sewage in online pits or things like that. That's sort of in some ways like the low hanging fruit. The problem, as you said, is that this is in products that we use every day, many of which we don't even know we use. Right?

00;48;13;03 - 00;48;31;08

Mark Templeton

Dental floss. I mean, again, I can sort of imagine, like why it's good for dental floss, because, you know, it doesn't stick. Right? So it would make it would make it easier to get a kind of in and out of your teeth. Right? It has been used in kind of the wrapper for fast food. It is popcorn, microwave popcorn bags.

00;48;31;12 - 00;48;55;26

Mark Templeton

And, you know, I'm not up to date on like, where is it in every single one of these products, but it is ubiquitous. I think there are times like when I think some use cases may be stronger than other use cases. So it's complicated, right? It has been used in firefighters equipment, to help protect them. There may be substitutes and if there are substitutes are safer.

00;48;55;26 - 00;49;20;26

Mark Templeton

They should totally be used. But maybe in situations of extreme heat where you need water to be repelled, you could actually see sort of a justification for that. It's been used in fighting jet fuel fires. And again, there may be because jet fuel burns incredibly hot. You need the fire out immediately for safety reasons. Maybe there is some form of a use case there.

00;49;20;28 - 00;49;39;22

Mark Templeton

It turns out that actually it's a major source of contamination, because people have been spraying it and practicing it and just, like, runs off without any controls. But yeah, I mean, I think likely where we end up is that we see much more tight restrictions on this with maybe a handful of kind of special use cases going forward.

00;49;39;24 - 00;49;53;13

Jonathan Hafetz

To the movie ends and, movies made in 2019. I mean, you talked a little bit about some, you know, kind of ongoing issues and developments, but have there been any other updates sort of on the legal front since the movie?

00;49;53;15 - 00;50;14;08

Mark Templeton

So there have been a couple of different kinds of developments. Let me just mention a couple of the regulatory kind of pieces again, and then I'll talk about some litigation updates. Right. So on the regulatory side, the Biden administration announced a fast strategic roadmap for 2021 to 2024, where it would go about a number of different kind of regulatory steps.

00;50;14;10 - 00;50;47;15

Mark Templeton

One of those steps included setting standards for drinking water, which I talked about, previously. They also set a standard related to cleanups, under the Superfund law, which is really important because it may lead to identifying some new sites as being eligible for the Superfund program, which is a source of money that EPA can tap to clean up sites and then seek reimbursement from the companies that actually contaminated it, or just get the companies to actually kind of clean it up to those levels.

00;50;47;15 - 00;51;09;16

Mark Templeton

So there may be some new sites. There may be sites that were thought to be cleaned up that actually have those kinds of problems. And so it's another way of getting kind of the polluters to pay for the problems that they have created through previous, PFOA, that's kind of a couple of, many of the different kind of regulatory actions that the Biden administration, took on the litigation side.

00;51;09;18 - 00;51;42;12

Mark Templeton

There are still thousands of cases that are out there consolidated into multidistrict litigation. Interestingly, over the summer, the, DuPont ended up settling for $1 billion, putting aside $1 billion to help municipal drinking water systems install kind of necessary technologies to filter fast PFOA kind of products out. And three, settled for $10.3 billion. I'm sorry.

00;51;42;12 - 00;52;05;25

Mark Templeton

That was in 2023, not 2024. Estimates, though. Are that still not enough money to actually upgrade these systems? Brunswick County, North Carolina, which is near the Cape Fear watershed, which is kind of highly contaminated, that's kind of the Camp Lagoon kind of area. They spent $100 million to upgrade their water system. It's still costing them $3 million a year.

00;52;05;27 - 00;52;25;23

Mark Templeton

Another city in South Carolina estimated their costs at 100 to $120 million. So, you know, it sounds like a lot of money, and it's helpful to have some money. But, these kind of cases kind of are continuing even related to, like, some of these firefighting foam, issues related to the fire equipment, etc..

00;52;25;25 - 00;52;38;15

Jonathan Hafetz

Well, Mike, I have to ask you, now that we're in a new administration, the Trump 2.0 administration, do you have a sense of how the stakes are changing or how this may be different in terms of these issues?

00;52;38;17 - 00;53;16;01

Mark Templeton

Yeah. So a couple of thoughts. The types of people who were in the first Trump administration were not the most forward leaning people on these kinds of chemical protections, I guess I would say. And so things remain to be seen. But I am skeptical, given the strong industry ties of people who seem to be at EPA now or were involved in drafting project 2025, which turns out to seem like a plan for the Trump administration.

00;53;16;07 - 00;53;45;24

Mark Templeton

I'm skeptical that those people are going to restrict PFOA, fast type substances significantly. You know, it's a really interesting time because EPA initiated these rule makings. There were lawsuits against these rule makings. There were done under the Biden administration. The Trump administration could reverse them. The Trump administration could also say, look, hey, actually, we want to reconsider this and and put it essentially in administrative limbo by saying really good points were made.

00;53;45;24 - 00;54;12;09

Mark Templeton

We want to, you know, reconsider this. And then also currently it seems like EPA staff is going to be reduced. So there are fewer people at EPA to work on this. And, it seems that there being reductions at the Department of Justice Natural Resources Division, which gives them fewer tools to enforce the law. So I think that I guess bottom line is we're probably not going to see a lot done proactively to restrict Ki fast and PFOA.

00;54;12;12 - 00;54;43;18

Mark Templeton

But you never know. I mean, truly, you do never know these things under the Trump administration. One, they actually put a lot of emphasis into trying to get sites cleaned up under the Superfund program, which and it is true, sites have been taking a long, long time to kind of get cleaned up. And so there were actually some sites in some environmental justice communities that the actually real progress was kind of made under the Trump administration because redevelopment, development and redevelopment was a priority for them.

00;54;43;18 - 00;55;14;09

Mark Templeton

So I don't you know, some of this remains to be seen. The other key point I was going to make is that there's still state action. So dozens of states have taken action. It can vary from requiring studies to, task forces to just gathering data. Or EPA is gathering a bunch of data, as well, to, you know, bans on, particular use in particular products like New York has a ban that just came out on the use of PFAs, PFOA in apparel.

00;55;14;15 - 00;55;40;15

Mark Templeton

So, yeah, I mean, in the lack of federal action, I think state action is really important. And also that's not really perfect either, because, you know, we do live in a single economy in the United States. And goods travel and water travels downstream. And, you know, strong national standards are what's really appropriate here. But kind of in the absence of that, it's good that the states are doing what they're doing.

00;55;40;15 - 00;55;42;05

Mark Templeton

Generally speaking.

00;55;42;07 - 00;55;58;22

Jonathan Hafetz

So at one point in the movie, Wilbur Tennant complains the system is rigged. So does Tennant get it right, or does the film suggest the system can be made to work? And are there any other takeaways in the film? In the continued struggle against environmental pollution?

00;55;58;25 - 00;56;30;20

Mark Templeton

I think the system generally does not have to be rigged, but it certainly can be rigged by people who want to manipulate the system for, I'll say, their advantage. We talk about how corporations are people. It's kind of a bit of a joke, now. And and legally they have, you know, personhood. Corporations are not really people. People work at corporations.

00;56;30;22 - 00;56;58;02

Mark Templeton

People are in charge of corporations, CEOs, boards of directors, chief scientists, etc.. And I think, like a lot of things in life, we depend upon the general goodwill and reciprocity of people in terms of how we engage with them. And, you know, there's a lot of trust, in the world and in circumstances like this, it's very hard to verify, the truth of these things.

00;56;58;02 - 00;57;22;03

Mark Templeton

And so I think that there's a lot of money sloshing around here. And I think that that was I mean, I'm not inside the head of the people at DuPont. But they, I imagine, felt like they were under a lot of pressure to deliver a profit to shareholders to continue to deliver that profit. And I think that once a cover up starts, it's hard to stop the cover up.

00;57;22;09 - 00;57;47;03

Mark Templeton

And yeah, I guess I don't necessarily believe that the overall system is rigged. I do think that the system, depends upon a social compact. I think the regulatory system is slow moving for good reasons at times, because you want to have good information. You want everybody to be consulted. Right? We believe, I think participation in governance and all of those kinds of things.

00;57;47;05 - 00;58;06;06

Mark Templeton

But, you know, delay also creates all sorts of problems as well. So I guess I am not willing to throw the whole system out per se. But I mean, this goes kind of back to the point of the movie, which is that we need people to stand up and we'll pretend it stood up. But Rob, a lot also stood up.

00;58;06;14 - 00;58;26;17

Mark Templeton

And frankly, the person, at least as portrayed in the movie, his boss stood up. Right? There were a lot of times when people could have backed down or said no, and very lonely, very challenging. I don't think we want to rely entirely upon lawyers solving these problems, because these cases are very hard to prove and cost a lot of money.

00;58;26;20 - 00;58;39;18

Mark Templeton

That's why we need regulators. But at times when regulators are slow moving or asleep at the switch, shall we say, that's when we need to have these kind of, toxic tort suits or other kinds of citizen suits under the environmental laws.

00;58;39;21 - 00;58;55;11

Jonathan Hafetz

And I think, as you said, you know, the people will pretend. And the other people who stood up and brought it to light and rob a lot, who had a lot of, you know, potential personal, professional cost, engage in this 20 year ish long struggle to bring this to light. So what's happened to blot sort of since the movie?

00;58;55;11 - 00;59;02;24

Jonathan Hafetz

And was the firm sort of more happy when the large settlement finally came through because the movie cuts off before that?

00;59;02;26 - 00;59;27;29

Mark Templeton

Yeah, it's, interesting. People should 100% see the movie. I also recommend the book that a lot wrote called expose Poisoned Water, Corporate Greed, and One Lawyer's 20 Year Battle, because he tells some more of the kind of story behind the story of the movie, in that he talks about how kind of after there was a New York Times piece, in 2016, and a lot of people at his firm didn't even know kind of what he was doing.

00;59;28;01 - 00;59;52;07

Mark Templeton

Because, again, while these law firms have merged, partnerships gets pretty big, not everybody knows what everybody's doing. And so he got a number of kind of congratulatory notes from people in his firm. He also talks about how one local politician, who is still very supportive of DuPont, made a bunch of comments about how lawyers are the ones profiting off on the backs of people here and what kind of tie this back.

00;59;52;07 - 01;00;11;27

Mark Templeton

And he sort of says, yes, the attorneys got fees. But for a decade we were writing check after check after check money get paid out to co-counsel. Money has to get paid to our experts, money has to get paid to fund the scientific panel. And so it ends up not being like this huge payout that people necessarily think it is.

01;00;11;29 - 01;00;27;22

Mark Templeton

And so in that sense, I'm not sure that everybody in this firm was like, great, we got our 30% of this amount of money because you start to netting it out over time. And I mean, it's funny, I don't know, the final accounting, of this, but I think, you know, fortunately, blot has gotten a lot of credit for this.

01;00;27;22 - 01;00;46;26

Mark Templeton

I actually saw him speak at the University of Chicago Law School. Well, at the University of Chicago's Booth School of Business, he came and spoke, but with a group of people were actually concerned about abuses in a pure free market system. And so I think he has gotten traction on these issues kind of more generally and a lot of credit for that.

01;00;46;28 - 01;00;52;05

Mark Templeton

And he continues to be involved in various kind of cases. And a spokesman on these issues.

01;00;52;08 - 01;01;01;17

Jonathan Hafetz

Well, Mark, I want to thank you for coming on the podcast. It's been great to have you on to talk about Dark Waters and, it's just, a pleasure to catch up.

01;01;01;19 - 01;01;35;12

Mark Templeton

Now. This has been great. I was listening to other podcasts. We had one about Matawan, and there was a point where talking about a company town and, you know, just the similarities, right? I mean, Parkersburg being like a company town and how hard it was for people to stand up. And I think that at this time, it's a really great movie to give people hope about how individuals working together can help protect our environment and public health and bring restitution and justice to those who have suffered.

01;01;35;14 - 01;01;44;21

Jonathan Hafetz

Yeah, it's a really important message and a strong and kind of gripping film. So thanks again for coming on to talk about it. And I certainly encourage people to see it if they have it.

01;01;44;23 - 01;01;50;05

Mark Templeton

Thanks so much. I agree, a wonderful, couple of hours to spend on the movie.

01;01;50;08 - 01;02;08;13

Jonathan Hafetz

Hi. We're back, Mark, since we recorded this podcast a few months ago and now we're in late May, there's been many developments, like in many areas, you know, a lot change is very quickly in the Trump 2.0 administration since we last chatted. What's happened and how is it relevant when we're thinking about Dark Waters?

01;02;08;15 - 01;02;37;24

Mark Templeton

Yes. Thanks, Jonathan. Some things have changed. Some things have stayed the same. Some may have changed for some reasonable reasons. Some changes also have some concerns I guess as well. So the situation continues to unfold day to day. So I guess what I would say is at the end of April, Lee Zeldin, who is the EPA administrator presently in the Trump administration, unveiled a plan to address PFAs contamination.

01;02;38;01 - 01;03;15;07

Mark Templeton

Interestingly, a lot of it was pretty similar to what had been in the Biden administration's plan in terms of addressing issues related to fast. And so maybe that is actually a good thing in that there are consistent issues that need to be addressed in terms of better testing, better understanding of the toxicology and the epidemiological effects. Fast PFOA, not a single substance, but a whole class of compounds mean thousands of different compounds, all very similar in terms of certain chemical properties, but also different from each other.

01;03;15;12 - 01;03;35;29

Mark Templeton

So it does make sense to kind of continue to do, testing, in that regard. Another issue that I think in the plan that is kind of consistent, that maybe a change that is a might be a positive change, is that looking at a side in terms of like how we destroy fast once we it's actually collected under the prior plan, that was something that was can be kind of updated every three years.

01;03;35;29 - 01;03;53;02

Mark Templeton

What kind of like new technologies. And now the Trump administration is looking to update that kind of every year. I think that could be a good thing in that we now know more about fast than PFOA. We want to get it out of the system. So what are new emerging technologies? You know what's more kind of cost effective?

01;03;53;04 - 01;04;18;06

Mark Templeton

Something it was interesting that the Trump administration did a couple of weeks later, but relates to the issue of drinking water, right. Which is so critical in the movie, Dark Waters, they actually kept the same contamination level for PFOA and typhus and drinking water, which I think was a good thing. Right. That was kind of well, scientifically identified kind of level, but they extended by an additional couple of years.

01;04;18;08 - 01;04;40;13

Mark Templeton

The amount of time that drinking water systems have to kind of come into compliance with the law typically is three years. Biden administration gave them five years, which is the maximum under law. And now the Trump administration is saying they're going to give them another two years. Not clear that that's legal, probably illegal. I think even people in the industry think that is not legal.

01;04;40;15 - 01;04;57;04

Mark Templeton

There are, you know, various realities in these situations of how hard it is to kind of like acquire the technology and install the technology and all of that. So I'm not close enough to that. I guess I would say I've got concerns because the law says five years water systems have been aware of this. They've been testing for a while.

01;04;57;04 - 01;05;25;11

Mark Templeton

And so I personally am troubled by the kind of additional extension, again, not understanding all of the economics of and engineering pieces myself. One other thing that they did was was related to drinking water was that there were kind of four additional compounds that the Biden administration had regulated as well. And basically, the EPA has said that they're not going to enforce and they're going to try and roll back, the regulation of those four kind of additional compounds.

01;05;25;13 - 01;05;45;20

Mark Templeton

One of these things, it's a little unclear on how this cuts, like a lot of this is a little unclear because there actually aren't that many systems that have tested it have those additional compounds. So we're like in the hundreds of systems for the PFOA and fast kind of in the dozens of systems for these other chemicals. So a little bit unclear.

01;05;45;20 - 01;06;03;16

Mark Templeton

Like does it make a big difference or not a big difference to not regulate them? It's kind of on the one hand, it seems like that on the other hand, we might be seeing more and more issues related to those four additional chemicals. I know I'm getting into the weeds here, but I think it's to make the broader point what industry started to phase out PFOA and fast.

01;06;03;16 - 01;06;24;16

Mark Templeton

They realized that there were issues. They started coming up with replacement versions of PFOA fast. So like you start with version 1.0 and then you realize that they're issues and you start going with version 1.5 or 2.0 or things that they called like Gen X. And so we've seen a lot of historical contamination of the ones that were used the most early on.

01;06;24;18 - 01;06;45;28

Mark Templeton

Now these like additional for some of the newer versions. So there's a risk that we're going to see more and more contamination of these newer versions of the chemicals that are not going to be regulated by EPA. So it's an interesting time, I guess. One other thing I might add, Jonathan, again, I apologize. I'm really getting into the weeds here, but I think it's just that the complexity of this.

01;06;46;01 - 01;07;21;25

Mark Templeton

There have been a number of news articles recently about this issue also, and the issue is kind of like, who are we going to hold responsible? I say we I mean, society, EPA states kind of through the various laws, there's this idea of an entity which kind of has a secondary source, quote unquote, a secondary source. So a company may be using PFAs in its industrial process, and then it puts it into the waste water, which then goes to a treatment plant which is typically run by your local municipality or some governmental or quasi kind of governmental district.

01;07;21;27 - 01;07;49;06

Mark Templeton

Those facilities are then treating the wastewater. What they often try to do is they try to take them of the biological solids and basically dry it out and then sell or give it to farmers as fertilizer because it's really nutrient rich. So what happens is the pass makes its way through the whole system. So the industrial entity will have some PFAs, they'll stick it in the pipe that goes to the wastewater treatment facility, the wastewater treatment facility.

01;07;49;13 - 01;08;13;03

Mark Templeton

You know, some of the efforts will end up in water called biosolids, which are to these really rich materials that that farmers put on their fields. And so the flows all the way are we, as a society, going to hold the farmers liable for the farce that they got from the wastewater treatment plant? Are we going to have the wastewater treatment plant liable for the farce that it got from the industrial process?

01;08;13;03 - 01;08;36;28

Mark Templeton

And the general rule in environmental law is kind of under the Resource Conservation and Recovery Act and under the Comprehensive Environmental Responsibility Commission Liability Act, or Cercla, is that you touch it, you own it. Like in terms of liability. Am I predating myself here? But when I was younger, I watched a movie called Son of Blob, and the idea was like, you know, the blob is everywhere.

01;08;36;28 - 01;08;54;01

Mark Templeton

If you get touched by the blob, you become part of the blob. I feel I can I can use this because we're at a movie podcast, like, you know, you can't escape it, right? That's kind of like put liability under Cercla and require are like with some particular exceptions because it was kind of too much, too much at the beginning anyway.

01;08;54;01 - 01;09;11;27

Mark Templeton

So there's this like real question of like the default is you've got it on your property, you are an owner of the contaminated site, you've got to pay for it. You can then go to court and make other people pay for it, also contribute to the cost of it. But you know, if if they're all bankrupt, you've got the financial responsibility for kind of cleaning up for that.

01;09;11;29 - 01;09;29;13

Mark Templeton

So there's this notion that, you know, we as a society may think that that has gone too far, and there are some legislative efforts to try and carve some of that out. You know, really stepping back, one can be of mixed minds, like on the one hand, farmers paid for or got this stuff because they thought it was going to be good for their fields.

01;09;29;13 - 01;09;46;10

Mark Templeton

They were told it was going to be good for the fields. Like seems kind of unfair to hold them liable for that. You know, the wastewater treatment plants are somewhere in between. They actually can impose a lot of requirements on the people upstream. They vary, like in Chicago, obviously, they're super sophisticated. New York, Los Angeles, right. They know what they're doing.

01;09;46;15 - 01;10;03;18

Mark Templeton

Smaller places don't have the resources, right. So they're not up to speed. So again, you can have like a slightly different view about them. Whether they should be responsible or not. On the other hand, you start doing carve outs in the fundamental environmental law. And it's like, I don't know, you put something on the table these days.

01;10;03;20 - 01;10;27;16

Mark Templeton

I'm not sure you want to open up the patient to do the surgery, because you might end up taking out more. That should be taken out. Right. What has been the general reticence to opening up environmental laws despite their failings, since they were kind of passed in the 70s, 80s and 90s? So it's a really interesting time. This is not stopping what's going on in the background.

01;10;27;19 - 01;11;03;24

Mark Templeton

So there continue to be lawsuits, right? New Jersey has apparently just reached a settlement with three M, a corporation somewhere in the range of 4 to $500 million related to the three and three M's responsibility for PFOA, the broad class of contaminants, in new Jersey. And that's in addition to some of the multi-state litigation that would also be bringing hundreds of millions of dollars to assist drinking water plants and things like that, in new Jersey.

01;11;03;29 - 01;11;29;19

Mark Templeton

So I guess my point being, there continue to be state enforcement actions under either state law or kind of common law kind of claims, as well. So a lot of this multidistrict litigation continues to proceed apace. States are still taking action. So like Maine is just passed or is in the process of passing a law which is going to regulate PFAs, PFOA in food.

01;11;29;21 - 01;11;51;26

Mark Templeton

And I think it will be the first in the nation law that's going to require require testing of food and not just kind of the packaging pieces, but kind of like related to fast and PFOA. Maine is at the cutting edge. They continue to move forward. There was a petition that was filed to try to get the Food and Drug Administration to do more on fast and PFOA in terms of, you know, ways generally.

01;11;51;26 - 01;12;29;12

Mark Templeton

Right, the FDA kind of regulates food and cosmetics and things like that. So efforts to try to get the FDA to use its regulatory authority. And I think we are still in the beginning stages of this game. Or maybe we're in the the last part of the first quarter, the first part of the second quarter, where we know there's a big issue bigger than I think everybody really appreciated at the time, I think is often the case when we start looking for like, wow, this contaminants are worse than we thought they were going to be, and they're just so pervasive and so now we're in the, okay, how bad is it?

01;12;29;12 - 01;12;49;14

Mark Templeton

Where are all of the places that it is doing the mapping of that? And then who pays? Right. It's kind of the big question that we're sorting out through these different kind of pieces. What is EPA doing? It's going to require certain people to cover the cost or not cover the cost, etc.. So the interesting and exciting times, for folks.

01;12;49;16 - 01;12;53;19

Jonathan Hafetz

Yeah, under an administration, it's wildly unpredictable. And, you know, so yeah.

01;12;53;22 - 01;13;19;25

Mark Templeton

I think that's true. I think that one of the thing to I mean, I think this is a challenge for many people is that the people in the Trump administration who are working on chemicals and other issues often come out of the industry and so have industry perspectives on these points. It's not inherently bad, right? People have got industry experience, understand technical details.

01;13;19;25 - 01;13;37;13

Mark Templeton

They understand the economics. They understand the supply chains. Right. There's benefits to having people with that kind of knowledge at the table. I think the issue is, you know, if they're were at the head of the table and setting the agenda and then determining who else gets to participate in these discussions and whose voices are heard the most in kind of what's done.

01;13;37;20 - 01;13;59;12

Mark Templeton

I think that's where a lot of people are concerned about public health and the environment. Get worried because, again, some of these things that might have some sense, you kind of wonder, like this extension for an additional couple of years for the drinking water systems to do more. And that's just a buy time for EPA to deregulate further or to change the standards further.

01;13;59;14 - 01;14;24;09

Mark Templeton

So what's the rationale, what's being given that might have some merit, although people could disagree. But what else might happen in the interim? I would also just say like, there are these broader issues of what's going on with the regulatory state. How are the courts thinking about agencies authority to promulgate regulations to interpret the laws? This is not just an issue about PFAs, PFOA.

01;14;24;09 - 01;15;05;18

Mark Templeton

It's not just an issue about EPA. So it's happening in this broader, not even deregulatory context. I mean it's anti regulatory context, right. So I think what I say, what's the distinction like I think deregulatory would mean that you're trying to reduce the number of regulations or maybe reduce the burden of regulations. But I say anti regulatory I mean just like anti the administrative state and really dismantling the system and not enforcing the rules that exist currently, the administration could still have perfectly fine rules on fast and people on the books, but if they're not enforcing it and if state attorney generals and state environmental agencies are not enforcing the law, then you're going to

01;15;05;18 - 01;15;19;01

Mark Templeton

be in a situation where people in the blue states, because they're enforcing existing laws and their legislatures may have additional laws, are gonna have additional protections, but others are not going to have the same protections. I could go on and on.

01;15;19;03 - 01;15;40;13

Jonathan Hafetz

I mean, it does raise a larger question, as you know, before we wrap up about whether this kind of idea of this movie, like Dark Waters, a kind of whistleblower movie where you've got Rob a lot, the lawyer, I helped uncover this, a scandal or this cover up. You know, there's exposure through the media, there's action in the courts, and there's ultimately, like a system that can kind of self-correct or correct to some extent.

01;15;40;13 - 01;16;06;02

Jonathan Hafetz

I mean, as you elaborate on there still, you know, it's such a complex, but there's a system which in which you can kind of press back against, and that will correct. But the larger question now, in terms of the movements towards Anti-regulation is whether there's going to be that kind of background for whistleblower activity. And, you know, what would a Dark Waters to kind of movie look like when you're pushing back and there's no state, there's no court system, there's no industry that's going to self-correct.

01;16;06;02 - 01;16;07;20

Jonathan Hafetz

And I don't know that. Yeah. That's a yeah.

01;16;07;20 - 01;16;26;05

Mark Templeton

I think that's right. I mean, I think maybe just to circle back to some of the themes at the very beginning, you know, a couple months ago when we talked about this, right, there's the traditional approach, regional common law approach. Right. Was tort law, which is exposed in the environmental space. Complicated, right. Cancer typically takes a long time to develop.

01;16;26;10 - 01;16;43;19

Mark Templeton

People are exposed to a lot of different things. So it's hard to show the causality. It's hard to go back. Even if you knew that a particular substance caused a particular cancer, like 1 to 1, and was the only way that, you know, the only substance and the only cancer, like, how much exposure did they get, at what point in time?

01;16;43;24 - 01;17;19;24

Mark Templeton

Who was responsible for that? People die, right? And so like the states can still have their claims, but like a lot of people are also like, we're just done with this awful thing, right? And we're the lawyers who've got the money to kind of take on these big, I mean, organizational bankruptcy, there's a whole huge set of like, problems with the ex-post traditional regime, which is why we ended up in an ex anti, regulation system, right where we have like cure requirements, the drinking water systems must have in terms of what are the what's this maximum contaminant level that we allow for certain substances to try to head off these problems requiring industry and

01;17;19;26 - 01;17;38;01

Mark Templeton

wastewater treatment plants and drinking water treatment plants, again, kind of lumping them in to the same bucket here to do certain things. And so we've avoid these expose problems. And I think with the chipping away of the anti the ex post is going to be more important. But that hasn't solved any of the fundamental problems of ex post.

01;17;38;01 - 01;18;01;05

Mark Templeton

So it just means that a number of things you know, people are, you know, going to fall through the cracks on this some level. It's a policy choice. It's a moral choice. Also, it's not how I would do it. I'm a believer in ex-ante. I also believe that the ex-ante stuff could be reformed, but I think there's a number of interesting discussions right now that, I agree with and disagree with parts about.

01;18;01;11 - 01;18;25;00

Mark Templeton

Are we regulating too much or are we not regulating the right things, or did we regulate the way we thought in the 1970s? And the world has changed in 50 years. So, sure, there's a bunch of stuff that could be changed. I just worry. Again, it's the move to anti regulatory with, I think, not enough people fully understanding the benefit of regulation.

01;18;25;02 - 01;18;39;23

Mark Templeton

Right. They have generally worked generally I think again they're trade offs cost benefit trade offs. But they've generally worked. But because they've worked they've kind of been in the background. And so people don't realize kind of how they've benefited. And so we shall see.

01;18;39;25 - 01;18;41;04

Clip

To be continued.

01;18;41;07 - 01;18;53;14

Mark Templeton

To be continued. You know, Jonathan, where there is a dark waters to or equivalent, I hope you will think about inviting me on again. This has been awesome. Thank you for letting me, with your listeners.

01;18;53;16 - 01;18;58;20

Jonathan Hafetz

Yeah. Thanks so much more for coming on and coming back on for the update. So absolutely, we'll meet again.