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Jonathan Hafetz

Hi, I'm Jonathan Hafetz and welcome to Law on Film, a podcast that examines law through film and film through law. This episode we look at Erin Brockovich, the 2000 film directed by Steven Soderbergh, that's based on a true story of Erin Brockovich, a legal assistant without formal training who helps bring one of the most significant environmental lawsuits in U.S. history, the Case against Pacific Gas and Electric for contaminating groundwater in Hinkley, California.

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Jonathan Hafetz

The film, which features an Oscar winning performance by Julia Roberts in the title role, explores the role of lawsuits and exposing the truth in gaining compensation for victims, the obstacles those lawsuits face, and the gendered dynamics of legal advocacy as well. Joining me to talk about Brockovich is Dror Ladin. Dror is senior attorney at Earth Justice Northeast Regional office, where he focuses on enforcing climate mandates.

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Jonathan Hafetz

He's also representing Writers Alliance to ensure that New York can have congestion pricing, and to prevent the federal government from eradicating it. Tour was previously an attorney at the American Civil Liberties Union, where he represented the Sierra Club and the Southern Border Communities Coalition, and their challenge to President Trump's border wall. He also worked on numerous cases seeking to enforce constitutional protections and human rights in areas like torture and arbitrary detention.

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Jonathan Hafetz

I was proud to work alongside draw in many of these challenges, fighting the very difficult battle against the US government sometimes felt like tilting at windmills. Draw. It's great to have you on law and film, and I'm looking forward to talking about this movie.

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Dror Ladin

Great to be here.

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Jonathan Hafetz

So the film centers on this mass tort litigation. What's the basic background for the case and how do they learn about it?

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Dror Ladin

So the film describes, in sort of an abbreviated fashion how Erin Brockovich, who is a in the beginning, sort of a file clerk, but rapidly develops into probably the most formidable paralegal or non-lawyer on a legal team that maybe has ever been depicted. She, in the course of looking at a at what appears to be a simple pro bono real estate transaction in which Pacific Gas and Electric is seeking to purchase a home in Hinkley, California.

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Dror Ladin

She discovers that the people whose home is being purchased seem to have a huge array of health problems that might be caused by contamination coming from Pandy, and that, in fact, all these real estate transactions that the utility has been conducting in California might actually be a way of trying to cover up the environmental damage it is inflicted on the community.

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Dror Ladin

And so she's very dogged. She uncovers all kinds of very incriminating documents from the water board, and she basically pieces together both the source of the contamination from the plant to the specific health problems that are devastating the community in Hinkley.

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Jonathan Hafetz

Know. So she's not a lawyer, but she has all these other like, set of skills to try to gather this information. I mean, how why is it so hard sometimes to get this kind of information that is able to finally get.

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Dror Ladin

I think, I mean, there's there's a lot of so first of all, one of the main impediments to anyone who is trying to bring some kind of lawsuit for accountability is often the person who knows what really happened and holds the documents to prove them. Is the person you're suing. It's the entity. So here, PGE had all kinds of documents about its own culpability, but it had, as later described in the movie, actually sought to destroy a lot of those documents.

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Dror Ladin

And other documents were sort of buried in these bureaucratic files. The county water board that were very next to ordinary members of the public. And the movie describes a very widely Erin Brockovich sort of using her, her charm and savvy to get past, you know, a maybe not the most impressive bureaucratic employee of all time and just let herself into a back room where she can conduct explorations of what exactly, you know, the the paper trail she's looking at is all kinds of documents that date back decades before she's looking at them.

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Dror Ladin

So there are all these water test results and orders from the 60s, because the discharge, you know, one of the things that the movie sort of shows very well is how historical problems with the environment have repercussions that last well beyond when they occurred. So all this actually occurred due to a chromium discharge that happened, I think, between the 50s and 60s, and its health problems are manifesting in the 80s and 90s.

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Dror Ladin

And she uncovers all these documents, but she does it. I mean, through in the movie, it's really portrayed through, just like sort of she talks to professors, she undercovers, she uncovers documents, she talks to everyone, she talks to people in the community. She sort of assembles a history. It shows really the importance of this kind of person to person investigation, which is not in any way dissimilar, I think, to what an investigative journalist or to what other kinds of investigators do.

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Dror Ladin

And, John, I know you and I have have been on cases where we've had investigators, and then we've also had lawyers who act like investigators or paralegals who act like investigators. You know, all this investigation is so that you can actually get into court to begin with because you never have access to begin with to the other side's documents.

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Dror Ladin

That only comes much later.

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Jonathan Hafetz

You know, one of the other obstacles are sort of implicit. What you're saying is, beyond getting the information that the other side controls is you're dealing with people who have suffered, you know, trauma in this case, terrible health effects, right? Their children themselves. So you've, you know, in your environmental work and your work representing like torture victims, that's like another dynamic, right?

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Jonathan Hafetz

So she's sort of does both. She's dogging and getting the information, I guess, but she's also able to sort of talk sympathetically to people.

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Dror Ladin

Yeah. And that's I mean, that's such a huge part of both her skill set and so essential to, to this case or really any case working. You know, the movie almost caricatures that there's a character of this incredibly buttoned up lawyer who's sort of has like a helmet of hair and, you know, it's like visibly uncomfortable talking to to ordinary human beings outside the confines of, like a, you know, a law firm conference room.

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Dror Ladin

So she, you know, she she goes in the community immediately alienates everyone she talks to. And it's just the exact opposite of Erin Brockovich as approach. And that's one that, you know, especially when cases are extremely difficult. Just like you said, when they deal with trauma, when they deal with people really suffering, the worst thing that is imaginable to them, there's so many ways in which it can go wrong to try to, to try to translate that suffering into the language of the law.

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Dror Ladin

Because you see, you see this law sort of engaging in classic mistakes where she, you know, she like, immediately tells them when they start talking to her, rather than sort of being open to hearing from another human being. She tells him, please, you know, keep your emotional story to the side. Don't, don't you know, please give it to me in the driest possible terms.

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Dror Ladin

That's that's not a way in which any ordinary human being relates. And and especially when you're asking people to open up and trust you with something that is so difficult for them, it's just such a different skill set to be able to elicit that and be compassionate about it. And you and I have had, of course, the great fortune of working with an acknowledged great at this, which is Steven what who is a colleague of ours who, unbelievably, is actually a lawyer, because, you know, there's the movie suggests that lawyers don't don't have this touch.

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Dror Ladin

But Steven is exceptional in many ways. And we worked with Steven on a lot of cases involving people who had suffered really grotesque and horrifying abuses by powerful figures and by powerful figures who would abuse them and ask them questions and abuse them and ask them questions. And that can map on so easily to the dynamic of a lawyer, client, you know, interview.

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Dror Ladin

And so you really need just an unbelievable level of sensitivity and, and intelligence and kindness to deal with that. And as this movie really aptly demonstrates, if you don't have that, you know, it's just impossible to have any kind of client relationship in this kind of case.

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Jonathan Hafetz

Yeah, it really makes that point. I mean, a very, very dramatic black and white terms, but it does. It kind of does bring it out. I mean, so one of the advantages or one of the, one of the challenges in bringing this type of mass tort litigation against a, against anyone and especially is a large companies that they have the information.

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Jonathan Hafetz

Right. You don't you don't know what they know. There's asymmetrical access to information. I mean, the movie also sort of suggests there's other obstacles in terms of imbalance, of wealth and power.

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Dror Ladin

Yeah. I mean, this is something that, you know, the movie shows extremely well in that, in that meeting. So that what's happening is later on in the film, they've they've moved past the sort of initial obstacle of even establishing that they have a case. So in the movie it's because it's state court. It's a, it's a demur in the context that you and I practice in more frequently.

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Dror Ladin

It's a motion to dismiss. But basically there's this initial part of the case where you have to actually establish that you have a case, you get beyond that, you can get to start proving your case, establishing your case, all the appeals, all the endless procedural motions, discovery, all this stuff that basically ties up civil litigation for for frequently years and years and years.

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Dror Ladin

And rather than attempt to do that in the course of sort of ordinary civil litigation, there's this proposal by a mass toward expert who's brought in to to join this, the sort of small law firm that works for he suggests that instead of sort of going through the normal trial procedures, they submit to a binding arbitration, in which case they will just not have a jury, they won't have a full trial, and there won't be any appeal.

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Dror Ladin

So both sides will have to accept the verdict, which will provide, you know, a limitation on the timeline of the whole thing. And why would you know a defendant agree to this? Well, the reason a defendant agrees to it in this case is because PGD is able to cap their liability. They know going into this binding arbitration, they will not pay more than $400 million no matter what is established.

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Dror Ladin

And so that is something that then Erin Brockovich and the main lawyer in the case have to take to the community and explain to them why they are willing to or why they're recommending that the members of the community basically sign away their right to go to court to appeal, to have an unlimited trial, and instead to just basically bargain or not normally bargain, but submit to this one arbitrator will decide a number for them, and with a cap on what that number might be.

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Dror Ladin

And you know, initially the people of the town are very they're very put off by this very taken aback. It seems very unnatural. You know, they've had these lawyers tell them all along. You know, it's going to be a struggle. But we're here for you. And at the end of the day, you know, we think your case is very strong and you'll get to tell your story in a courtroom, and you'll get all this money.

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Dror Ladin

And they have to give them the lawyers have to give them, unfortunately, a reality check about sort of the way in which American law operates, which is if you are a large corporation or if you're the United States government, you can often put off any obligation to pay, even in an open and shut case, for a very, very long time.

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Dror Ladin

This is something that you can see, you know, Donald Trump using both in his in his personal litigation strategy and, and his government doing where they whenever they get orders against them, they seek to forestall those orders. They seek to appeal those orders quickly. They seek to defer any obligation to pay. And the result is that people who are much smaller entities, people who are not the government, who are not giant, multi-billion dollar corporations, can't really wait it out, even if they even if they are ultimately going to win, you know, at the end of the day, for them, often it's much more realistic and much more beneficial to their present circumstances to accept a

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Dror Ladin

much lesser payment today than what they would actually be entitled to. You know, once all the stalling tactics were defeated, which could be ten years or more, there's a very powerful sort of analogy that that the lawyer gives during this meeting where he says, you know, if you all heard of the love canal that was established, they established liability at the end of the 70s, and people were still waiting for their payouts at the time of the are in Brockovich movie, which is taking place in the early 90s.

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Dror Ladin

So, you know, that's not at all unheard of for these things to take years and years and years. And when you've got health problems, when you've got, you know, family members who need the money, when you need the money, it's just not it's often not realistic to ask people to wait. And I've certainly been involved in lawsuits where that was a real hard question for the for the plaintiffs in the lawsuit was whether to accept, you know, a much lesser amount of money than they would probably receive at the end of a trial for the sake of actually getting it right now, without further appeals, taking more and more years off.

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Dror Ladin

And I've had clients go both ways. I've had people who decided they wanted to stick it out, and I've had people who said, you know, this is as far as I want to go.

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Jonathan Hafetz

So it's delay for the clients. And then they also brings out like it's how hard it is to litigate the case for, you know, it's the law firm, right? It's a small or medium sized law firm that under advisory. Right. The Albert Finney character who runs a law firm. And he just keeps saying, like, they'll just bury us in costs.

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Jonathan Hafetz

We don't have the money to keep fighting. And they get into this also a little bit with the contingency figure that they get, and they'll get what seems like a lot. And they have to explain why it's not so much the 40%, but at the end they're just, you know, showing out thousands of dollars if thousands of dollars, tens of thousands of dollars, hundreds of thousands of dollars.

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Jonathan Hafetz

And PGD is just, you know, vastly, you know, just vastly out arms them.

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Dror Ladin

Yeah, that's a great point. And it you know, I think at one point he he his character is like getting a second mortgage on his house or something to keep the lawsuit going. So. Exactly right. Yeah. It's not just the clients who are, who are facing this, this terrible choice between less money now but now and some kind of indefinite payday in the future.

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Dror Ladin

But yeah, the law firm is out. All this money with actually no, no guarantee that they'll ever get a sense of it. And that can be extremely punishing for a small firm over time. You know, I will confess that I've never worked for a small firm. I've always worked for nonprofit organizations where your incentives are a little different.

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Dror Ladin

But but yeah, that and, you know, and that that similar concern is also spun off. Right. All these litigation finance innovations where now you have I mean, the idea of like a payday in the future is something that's very attractive to all kinds of investors and alternative assets. So there's now all this, you know, I've certainly gotten solicitations, in fact, which was very funny because when I was at the ACLU, I would get emails from litigation funders saying, like, you know, I see her involved in this torts case.

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Dror Ladin

Would you like to talk to us about our litigation funding package, in which we would take some percentage of your future recovery and in exchange for money now? And of course, that's not the kind of agreement that you would ever get into. But they're, they're, they're hunting for for verdicts.

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Jonathan Hafetz

I don't know that they would have taken our cases either when push comes. And so you meant like Hinkley. So this place right in California, we see a little bit about me, some of the people from Hinckley through the movie. There's that sort of background on, you know, like how this came to happen at Hinckley. I mean, what, you know, why do things like this happen?

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Jonathan Hafetz

These kinds of these kinds of places in.

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Dror Ladin

Our society, the way we organize it is often we have places that are, you know, very expensive to live in, and we have places that are less expensive to live in. And the places that are more expensive are often protected by all kinds of zoning codes and very active residents. And and just the fact that land around them is expensive.

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Dror Ladin

And on the other hand, you have large swaths of the country where many people live, but where they don't have those similar protections. And that is where you end up with so much of this country's industrial waste, basically. And whether it's, you know, there was a natural gas pipeline that was flowing through Hinkley and they had. I don't know if it's like a compressor station or what it was there that that needed the cooling towers.

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Dror Ladin

But the fact of the matter is, now that I did a lot with them, with communities in New York and some other place, but especially in New York, and it's often the same sort of communities that are, you know, that are exposed to power plants, as are exposed to water pollution as their exposure to other kinds of facilities as they're supposed to diesel trucks.

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Dror Ladin

You end up having these places that we call environmental justice communities, or sometimes if they're really if they've been really overloaded with bad toxic plants, you might call them sacrifice zones. There are areas in which we basically decided as a society, you know, not no one's made the explicit decision to say Hinkley will be the place that suffers, you know, so the rest of us can have power, or the rest of us can have plastics or whatever it is.

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Dror Ladin

But the fundamental result is there's all kinds of places in this country that are called things like Cancer Alley, where you have people who live in communities that are just overloaded with all these industrial facilities that are not, you know, that are not near the homes of the rest of us. And there is there's an effort in recent years to try to address that through environmental justice laws that try to reduce the existing disproportionate burdens on these communities, because, again, these communities are basically like carrying the load of a giant society that is just being concentrated in much fewer areas.

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Dror Ladin

But that's very hard to do because there's a lot of political power that avoids a more equitable distribution. And we recently have seen the Trump administration try to just end any consideration of environmental justice and really aggressively go after attempts to improve that inequitable distribution. So it's not it's not terribly surprising that people of Hinkley who are, you know, a small, remote town, were the ones who are made to endure this kind of, this kind of pollution.

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Dror Ladin

The problem is, what are we doing right now? And and how can we prevent, you know, this kind of just sacrifice of a community? Because right now Hinkley is basically I mean, there's very little left of it. It's not that it's now like a beach town of or, you know, a vacation town of people all living in their $5 million houses and, and whatever.

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Dror Ladin

Using the proceeds from the Hinkley settlement, the town is really emptied out. There's there's fewer residents now than there were at the time of the movie. And the actual the waste plume there is expanding. So it's really just, you know, just destroyed this community.

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Jonathan Hafetz

And so with the just to go back to one of the obstacles you're talking about in terms of accessing the records, right? So one problem is like, you know, the other side has the records or they're difficult to get an Arab rock which is able to find some of them. She also relies on get some gift from a whistleblower.

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Jonathan Hafetz

I think in reality, it was kind of a composite group of whistleblowers who hand over information. Are there any changes in terms of the record keeping that's going on? I mean, that just presupposes the records exist. But I mean, are there any developments in terms of how records are being kept? Because ultimately there are records that she gets.

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Dror Ladin

Yeah, yeah. I mean, and the case really is a testament to the importance of having those records, like the fact that someone wrote that down in the 60s is what creates the paper trail that allows for allocation of responsibility. Today, unfortunately, we're facing right now the most deregulatory EPA of all time. And so there's any number of pollutants that currently have to be kept track of that are currently regulated.

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Dror Ladin

And regulated means you have to maintain records, you have to give records to the EPA. And there's very basic ones on like greenhouse gas reporting requirements. You know, the climate crisis we're facing is one that actually extends to almost every community in America in one way or another, in a way that's sort of different than than other forms of pollution.

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Dror Ladin

And yet just, you know, just now the EPA has ended or is attempting to end this reporting requirements on release of carbon dioxide. And so we're in this very strange situation in which we learn more and more every year about chemicals that are dangerous, that we didn't know were dangerous. There's lots of litigation and efforts to try to get EPA to regulate more chemicals rather than less.

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Dror Ladin

There's few people, I think, who would say that the main problem that we face as a society is that PGE was required to keep records about chromium, you know, like the it was, in fact, essential that they keep those records. You know, you don't you don't usually say, like, we have too much record keeping about lead or something like that, but you do have a particular species of sort of deregulatory zealot who does believe that that it is, you know, the government should not be in the business of asking for compliance with different kinds of restrictions.

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Dror Ladin

It should not be in the business of studying the health effects long term, of various kinds of chemicals and compounds, and that it's onerous to require people who run power plants or other kinds of facilities to keep records of what it is that they're putting out into the atmosphere, you know, setting up monitoring equipment and things like that.

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Dror Ladin

And unfortunately, you know, where we are right now is that this narrative has a lot of power. And so there is really an unprecedented level to stop keeping records and all kinds of things. And as to what that effect will be, I mean, for one thing, it's not just that that, you know, it might impact you to bring lawsuits.

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Dror Ladin

You know, it might make it very difficult to even understand why it is that particular things are happening. You stop keeping track of carbon. You have less of a sense of why it is that the climate is changing the way that it is. You still have keeping track of pollutants you might not be able to track. Why it is that a certain group of people suddenly all have cancer in a particular community.

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Dror Ladin

And, you know, these kinds of things need to be studied. You know, it's just a mind boggling to me that we would reduce the amount of information we have rather than increasing it.

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Jonathan Hafetz

Yeah. I mean, it would make it impossible to bring this. There were obstacles that, like Erin Brockovich and the firm face in terms of getting access, but they were there and ultimately they get them. But if they don't exist, that's really impossible. And the people themselves suggest they don't even they probably even know, right? I mean, people figure out what's happening in the community.

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Jonathan Hafetz

So it is it's kind of stunning. I mean, another thing that's going on now, right, is taught reform, right? You know, this was made in 2000. So we're talking about 25 years ago. The case itself is from the late 90s. So what's happened in terms of tort reform and limitations on plaintiffs to seek recovery.

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Dror Ladin

Yeah. So there's a huge again like another narrative. And the whole question that gets raised in the movie about the importance of punitive and punitive is one that is sort of shorthand for this idea in the law that sometimes you have multiple kinds of damages that might be awarded to a person who is suffered. Right. They can get what are called compensatory damages.

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Dror Ladin

So say, you know, a person in Hinckley now is disabled due to, you know, they talked about that, that man who had like a spine issue that deteriorated after exposure. So he might be disabled. So then the way the law would look at that ordinarily is the compensation for that would be his lost wages. You know, if he no longer can work because of disability, it would be lost wages.

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Dror Ladin

Now, if you're working a low income job, lost wages might not be calculated to be the high you're an older person. Maybe. How many more working years that you have. This is not like a like a like a giant. Some for especially when you're a multi-billion dollar corporation that has to pay it. The same thing is true even when it comes to, to to to human suffering.

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Dror Ladin

I mean, we try to quantify, you know, like the cost of medical care, the levels of distress and pain and suffering. But but the law is not incredibly generous about putting numbers on those. The idea is that the law should also form some kind of deterrence to a bad actor. If you're a multi-billion dollar corporation and you have to just pay for a few people's wages, a few hundred people's wages and some of their medical bills, that's not necessarily such a big expense for you.

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Dror Ladin

So there's some some idea that you want to deter it. You want to make the corporation really take notice. And also there's just an idea that as a society, we want to send some kind of message here. We want to say, this is really bad. You poison the whole community and the lied about it. That's a terrible thing.

00;23;08;12 - 00;23;28;17

Dror Ladin

And we want to make sure that, you know, no one thinks of just ordering someone to go and destroy the records and not inform the neighbors and do all this stuff again. And so that's where that's where punitive damages come in. And they can be enormous, and they can seem disproportionate to the harm because of the because of how little value the law places on things like human life and jobs.

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Dror Ladin

And so, you know, you can have the idea behind a punitive damage is if you prove that there was this reprehensible conduct, like they were able to establish here when they showed that PGE and knew about it and didn't inform anyone that they can have sort of this like uncapped damage that attaches that you're not required to prove.

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Dror Ladin

You know, I have suffered X amount and try to quantify it. You instead say, what is it some that that expresses our outrage. What is the sum that that shows the corporation? This is not okay. This is not something that we allow in a civil context, because this isn't the criminal law punishing it. It's the civil context the jury is punishing.

00;24;02;22 - 00;24;33;29

Dror Ladin

And so those are those are multimillion dollar verdicts that we're talking about usually. And here, I assume, I don't know how the $300 million verdict broke down, but I assume some significant portion of it was punitive damages, since that was the ball game in many ways. You know, since his movie came out, there's been this chorus of outrage from the corporate sector saying, well, how can we plan, you know, if we have this kind of like uncapped liability if we don't know if some jury is going to say you spilled hot coffee on your lap and were outraged at McDonald's for that.

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Dror Ladin

And so here's $3 million for for every time you spill coffee. I mentioned the coffee laughing because I think that was like really the face of tau reform for a while. So. So the Supreme Court has, you know, in the 90s, it kind of refused to impose real restrictions on it, basically just said you couldn't impose punitive damages based on harms that happen to people who weren't present in the lawsuit.

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Dror Ladin

So, like, if one person in Hinckley sues and says, but the punitive should be about what happened to everyone else in Hinckley, that would have been unacceptable under the the due process clause, basically. But in the 2000, there's been the steady march of decisions in which the Supreme Court actually decided that it didn't want corporations to be assessed all that much punitive damages.

00;25;18;29 - 00;25;43;09

Dror Ladin

And so the Supreme Court discovered this principle of proportionality, which had never really applied to the civil context in American jurisprudence. You know, there was an excessive fines clause, and there's a cruel and unusual punishment clause that the court has opined on occasionally in terms of restricting the state's ability to punish people. But in terms of like, you know, damages that a jury was awarding in a civil context, there was no similar principle.

00;25;43;11 - 00;26;15;23

Dror Ladin

And so the court created one. And it has said, you know, it should be a low multiplier. So you're not talking about like millions of dollars if your damages, your compensatory damages were just in the tens of thousands. And then in one case, it even suggested that the multiple should just be one. And, you know, it's it's fascinating to see the Supreme Court so sort of engaged with the question of proportionality and so affronted at the idea that that juries might over punish a corporate defendant in this context, when the court is otherwise very untroubled by the concept of proportionality.

00;26;15;23 - 00;26;33;17

Dror Ladin

So there have been other proportionality issues. Proportionality is a concept. It's very familiar in international law. It's not very familiar in US law, but it's something that's used all the time outside of the US system to try to decide things like, should you send someone to jail for 30 years for a very minor crime? That's something that other systems will examine proportionality.

00;26;33;18 - 00;26;50;10

Dror Ladin

Here we just have the cruel and unusual punishment clause. And the Supreme Court has basically said, you know, they've looked at, for example, California's three strikes law and said there's no need to assess the proportionality of a person going to jail for life for stealing videotapes. It's sufficient that the state made the connection and thought that was okay.

00;26;50;17 - 00;27;09;04

Dror Ladin

You know, similarly, there's no proportionality requirement if you deport someone for committing an incredibly minor crime, right? You have someone who's like a long term green card holder. They jump a turnstile twice and then they get deported. Under immigration law, the court does not subject that to some kind of proportionality analysis, although some advocates have have tried that.

00;27;09;04 - 00;27;19;05

Dror Ladin

So it is just another example of the way in which we seem to have a Supreme Court who's much more concerned about certain kinds of harms, certain kinds of disproportionality than others.

00;27;19;08 - 00;27;40;01

Jonathan Hafetz

And where does states figure in this? Right. So California well, now is a very forward looking progressive state on environmental regulation. And there was, I think some there was some state regulation even in the time of Erin Brockovich, you know, going back even, you know, to, well, in the 70s, 80s and 90s, where does state regulation sort of fit in, where to fit in there?

00;27;40;01 - 00;27;47;00

Jonathan Hafetz

And broccoli is not really mentioned in the movie. You just have the, you know, the private plaintiffs and you have PG. Andy, where do the states involved at all?

00;27;47;02 - 00;28;05;05

Dror Ladin

Yeah, I mean, there's a real there's a real push and pull. I mean, there's different states that have different, different regimes. But there is I mean, like you say, it's all it's you know, it's this was even like a local water board, I think that was doing the regulation that was charged with keeping the water safe and demanding, you know, a plan to to clean up the water if it wasn't safe.

00;28;05;05 - 00;28;25;18

Dror Ladin

And there are plenty of states that have rigorous standards for testing for, you know, for all kinds of ways in which they keep their residents safe. I think one thing that's that's sort of interesting is the cleanup. So, you know, like the Love Canal, which they mentioned in the movie or other kinds of toxic sites. Often, you know, what you have is some area that's very expensive to clean up afterwards.

00;28;25;18 - 00;28;42;17

Dror Ladin

And no one who's left holding the bag to clean it up because the company that put these toxic materials on the ground, it's not always PG, Andy, which is like an enormous utility that did just actually declare bankruptcy based on its responsibility for for the Dixie fire, which was John Wildfire in California that was caused by PGE and equipment.

00;28;42;17 - 00;29;04;01

Dror Ladin

But often you have just like these small factories that existed in the 60s and 70s, discharge some horrible chemical into the groundwater or the or the soil around them, did it in some slapdash fashion. And now, you know, there's no legal entity there that is holding the bag. Someone else owns the property. So there are questions of, you know, who has to pay to do cleanup.

00;29;04;01 - 00;29;28;10

Dror Ladin

And that's something that is decided both at a federal level and at the state level. One interesting kind of law that the states are experimenting with right now is climate climate harms. Right. So climate harms are similar in that the discharges happen over years and then climate change happens. Right? We have you know, the world warms based on decades and decades and decades of of carbon that's emitted from when it comes to hazardous materials.

00;29;28;10 - 00;29;47;26

Dror Ladin

For certain hazardous materials, we have what's called the Superfund law, which creates this regime in which you find the bad actors, basically, and you try to make them pay to clean up sites. It's not it's not a punitive law, but it's a way to try to make sure that the the state doesn't bear the entire burden. Taxpayers don't bear the entire burden of cleaning up their community if some if someone polluted it.

00;29;47;26 - 00;30;08;18

Dror Ladin

And so it creates sort of like this strict liability for anyone in the chain who profited from a particular site or owned a particular site. On climate, we have nothing similar. Right? So we have particular companies that are very responsible for climate change because they did things like extract lots and lots and lots and lots of coal and then burn it and at the same time cover up what they knew about the climate effects of it.

00;30;08;20 - 00;30;25;25

Dror Ladin

But we don't really have any kind of regime to make sure that when we have to do adaptation for flooding, or when we have to deal with erosion, or when we have to deal with, frankly, with installing, you know, more temperate, like building structures like like roofs that are white or, you know, things that allow for better air conditioning.

00;30;25;25 - 00;30;46;16

Dror Ladin

And in places that are getting hotter and hotter, we don't really have any sort of structure to do anything except to make taxpayers or individual homeowners or farmers or whomever responsible for the climate harms they endure. So a couple of states have tried passing what are called climate Superfund laws. So New York and Vermont have passed the first of those, and there's efforts to pass them in other jurisdictions.

00;30;46;16 - 00;31;15;06

Dror Ladin

And they basically set up this situation, which the state has said, we're not going to leave it up to, you know, individual plaintiffs to try to file a lawsuit. We're not going to say, like the farmers in the Catskills need to file a lawsuit saying we now have to spend twice as much on getting our fields, you know, to bear fruit because of the fact that climate change has so altered the weather patterns or because, you know, the river is now flooding all the time, and we now need to build up all these levees or things like that instead, at a state level, we're going to do is we're going to levy a charge to

00;31;15;08 - 00;31;34;10

Dror Ladin

the biggest polluters, the biggest entities, where most responsible for emitting carbon, which is easily ascertainable. And we will charge them and use that money to fund the climate adaptation that our state has to, has to undergo. And I mentioned this specifically because I'm involved with several lawsuits where, you know, New York and Vermont have just started these plans.

00;31;34;10 - 00;31;50;23

Dror Ladin

None of them has come into effect yet. They were just passed in recent years, but they've already been challenged by all the red states who charged that this interferes with interstate commerce. They've been, you know, coal companies and the gas industry and the Chamber of Commerce have sued the states to say that they're not allowed to do it and that it's unconstitutional and preempted.

00;31;50;23 - 00;32;26;03

Dror Ladin

And finally, the Trump administration has sued New York and Vermont as well, saying, you know, how dare you try to assess levies on the basis of climate change? That's something that we've decided not to do, and we don't want you to do. So the question of how states can actually get involved in sort of remediating the harms that the corporations cause and how we don't just leave it to individual people to sue those corporations, but try to have the states come in and pass some, some legislation that reduces some of the local burden is a really live one, and it's one that brings in questions about preemption, brings in questions about whether we have different

00;32;26;03 - 00;32;31;23

Dror Ladin

schemes in different states, whether the federal government can just keep everyone from doing it. There's a lot of unresolved questions there.

00;32;31;29 - 00;32;42;12

Jonathan Hafetz

And I guess you don't have to also prove direct causation in the same way, or you just basically because if they're the larger emitter or polluter without tying it to a specific site, or is that not the.

00;32;42;13 - 00;33;03;13

Dror Ladin

Yeah, that's a really important question. So there is you know, there's what's called attribution science, which is a way in which climate scientists assign the relative responsibility for particular events like you have, you know, you have a year in which, you know, like almost every year these days, right, in which you break the heat records that were broken the previous year, you have more destructive hurricanes.

00;33;03;13 - 00;33;20;14

Dror Ladin

You have all these things that would appear to be the result of climate change. At the same time, if you were like, you know, there have been cases in which people were harmed by a particular hurricane and then tried to sue a particular fuel company or a set of fuel companies saying, you know, because you cause climate change.

00;33;20;14 - 00;33;39;16

Dror Ladin

This happened and damaged me in x ray. You know, a lot of those cases are still out there and untested. But that's a hard theory of causation because of just the global nature of climate change. At the same time, the science is progressing. So my understanding is that there is ways to attribute specific climate harms to specific emitters.

00;33;39;16 - 00;34;00;02

Dror Ladin

But this is almost because, again, this is not being done through a tort model or through some kind of punishment model, but it's done through like a Superfund model. The idea is to get away from that kind of specific traceability of like. And the idea is, look, it is unquestionable that New York has to spend hundreds of millions of dollars to adapt to climate change.

00;34;00;02 - 00;34;14;04

Dror Ladin

It's not just New York. I mean, other other states do too. But, you know, for us specifically, it's things like flooding. That's how it manifests a lot in New York. And that's really expensive to we're not talking about remediating past floods. We're talking about adapting to the floods that are sure to come in the future because of climate change.

00;34;14;08 - 00;34;38;17

Dror Ladin

That kind of adaptation costs a lot of money. At the same time, it is also undisputed who the who the largest emitters of carbon are. And so I think the traceability there is easier. There's still, you know, scientific proof that establishes that, say the biggest coal company was responsible for a particular share of overall climate change, which then result in specific climate harms scattered throughout.

00;34;38;18 - 00;34;53;23

Dror Ladin

But here it's less because you're not seeking again to remediate a specific thing you're trying to prove damages on. Instead of setting up a fund for adaptation, it works much more like remediation, and therefore I think doesn't doesn't develop the same problems of proof that you would have in a private toward action.

00;34;53;25 - 00;35;13;00

Jonathan Hafetz

So interesting. I guess you've got to think about how to make a movie about that, right? I mean, you get the picture is very like you get the David and Goliath story right about in sort of private reform. But I guess, I mean, it's like it's not really like it's great for the particular case. And there was determined value for PGD and the victims were compensated was terrible.

00;35;13;01 - 00;35;23;14

Jonathan Hafetz

You know, pollution had to suffer. But private litigation, while important and shouldn't be cut off, is not ultimately probably the most effective way to deal with environmental protection.

00;35;23;17 - 00;35;45;24

Dror Ladin

Yeah, yeah. I mean, in many ways it's like the same way that we have, like, you know, all kinds of I mean, we looked at towards to solve all kinds of problems we have as a society, unfortunately. And it is you know, it's tragic because we don't take care. Right? It's like the people of Hinkley, if they didn't have if they weren't able to pin it on, I mean, it was PG fault, but they weren't able to pin it on like the larger PG, and they wouldn't even have had the money that they needed to to deal with their own health problems.

00;35;45;26 - 00;36;02;15

Dror Ladin

Right? There's like the whole thing about whether they can connect it to to San Francisco, PG and or whether it's stuck with Hinkley PGD. And that happens so often, right, where people are really harmed, but that the defendant is judgment proof and so they can't get the money from the defendant or they can't connect it to the deeper pocketed defendant.

00;36;02;15 - 00;36;20;13

Dror Ladin

And as a society, we don't have like some kind of backstop that says like, well, we're not just going to let you suffer with cancer or I'm just going to, you know, like, actually that's that's how our society works. It's like a less you manage to, to bring it in the language of taught, you know, through this like fully capitalist allocation of money, you're just shit out of luck.

00;36;20;15 - 00;36;52;03

Dror Ladin

And so, yeah, I mean, the story is the story is obviously one that, you know, it's very like inspiring. And you watch it and you think like maybe things are okay, but it's really actually illustrative of a much larger problem that very rarely plays out in the way that it played out in Hinckley. And, you know, Erin Brockovich, his subsequent career is one in which she did a lot of consultations on other sort of mass torts, one of which is previewed at the end of the movie, which was another sort of like it was very similar in that it was another chromium against PG and from a different community, I think, along the same natural

00;36;52;03 - 00;37;14;21

Dror Ladin

gas pipeline. But she also did, you know, consulted to all kinds of people suffering other kinds of toxic torts. And, you know, unfortunately, it's not that most of the time it lines up so neatly where you have the ability to really hold someone accountable and get get meaningful justice. And that's true both in the, you know, in the toxic tort context and also as as you and I know it's very true in the in people are harmed by the government.

00;37;14;22 - 00;37;35;20

Jonathan Hafetz

Yeah. For sure. In the civil rights context, certainly the national security context. Yeah. I mean, there's I see that now. I mean, for all the things that are going on in the current Trump administration, there's not going to be, you know, any virtually any form of private, any form of liability for the constitutional torts. I mean, even I go back at that point you're making about they have to trace the PGD and the deep pockets, right.

00;37;35;20 - 00;37;51;21

Jonathan Hafetz

Which is also like in a civil action took place in Massachusetts. Same thing. Right. They've got to tie it to the deep pockets. And it kind of depends like ultimately, you know, what really unlocks the door is this is the whistleblower, right? There's this person she meets in a bar, Aaron Brockett meets in a bar. She thinks he's kind of coming on to her, but he's not.

00;37;51;21 - 00;38;07;07

Jonathan Hafetz

He's actually, you know, got this information. He's kind of been watching and waiting to see. And I think in reality, it wasn't one person was multiple people. But I guess, you know, like what what role does like the whistleblower play in these environmental cases? How important are they? They seem so critical in this case.

00;38;07;13 - 00;38;30;16

Dror Ladin

You know, the whole question of assigning liability and connecting it to the mothership is one that's really important. You know, leaving aside the environmental context, it's one that's extremely important in, for example, the Alien Tort Statute context, where the idea is often, again, we're totally departing because but but, you know, oftentimes the worst abuses that the Alien Tort Statute addresses take place overseas.

00;38;30;17 - 00;38;46;15

Dror Ladin

And for a lot of years, that wasn't a problem, because the idea was the Alien Tort Statute was supposed to cover. I mean, a covers aliens, which generally are often people, are not located in the US, but B was, you know, it was intended really to deal with these terrible crimes like piracy, which always take place outside of the US.

00;38;46;17 - 00;39;21;03

Dror Ladin

Right? The whole idea behind them was to take place. You know, there are interferences that were happening on the seas. And over the years, the Supreme Court has tried to narrow the idea of, you know, of liability accruing to US based entities based on conduct that the same company undertook outside of the US. And so now there's just this whole question in all these ATS cases, whether it's about Nestlé using child slavery or whether it's about Chevron, you know, hiring thugs to to beat up organizers, all these things that are acknowledged, you know, to have happened by the company's subsidiaries, just like here was like by PG and, you know, like, like Hinckley's subsidiary.

00;39;21;03 - 00;39;41;19

Dror Ladin

And the question is whether the mothership is involved where there's like a nexus to the mothership, bad action. And outside of whistleblowing, it really is just so difficult to know that kind of internal like, you can you can absolutely know about the abuse, where it happened. But to be able to know the chain of internal stuff that happened at the company, that's impossible without insight into the company.

00;39;41;19 - 00;40;07;03

Dror Ladin

And so if you set that up as a requirements and you can't even bring the lawsuit unless you already can establish, you know, knowledge of what happened inside the company that led to that outcome, that's just an impossible threshold to meet, you know, again, absent a whistleblower, I mean, for us in the the Mitchell and Jessen case that we did about a CIA contractor here, there were all these questions about what conduct had they you know, the torture happened overseas.

00;40;07;04 - 00;40;26;17

Dror Ladin

The CIA prisons were overseas. So the question is, what was the US based conduct that happened? And for us, we didn't we didn't have quite the same type of whistleblower. What we had was the Senate report on torture, which declassified a lot of the documents that happened internally that we would not have had access to otherwise. And those established the existence of meetings.

00;40;26;18 - 00;40;49;18

Dror Ladin

You know, the fact I mean, for us, it was really critical that the torture techniques themselves were proposed on continental United States before they were deployed outside the United States. That became very essential for these extraterritoriality questions. So, yeah, I mean, whistleblowers, government reports, I mean, the whole the whole gutting of our inspectors general, like in the CIA context, that was where a lot of this came out was these inspector general reports from 2004.

00;40;49;20 - 00;41;07;08

Dror Ladin

If you got all these offices, you know, inside the government, and if you don't set up any reporting requirements outside of the government, then everyone's in the dark. And it really like you can know that a harm happened, but it's absolutely impossible to pin it on, you know, a meaningful defendant unless you have access to some internal records.

00;41;07;10 - 00;41;21;11

Jonathan Hafetz

Yeah. With corporations, I mean large sophisticated corporations. I mean, they are designed deliberately to limit liability and limit accountability. So, yeah. So it's challenging. So as an environmental lawyer, what's your favorite scene in the movie?

00;41;21;14 - 00;41;41;20

Dror Ladin

Honestly, I like the scenes in the record room. I mean there's sort of like there's sort of like, you know, it's hard to imagine went down exactly the way that it's depicted in the movie. But I think, you know, we've all been there where you're just digging through records and trying to make sense of them, and then you see something and you're just like, Holy shit.

00;41;41;24 - 00;42;01;12

Dror Ladin

It's written in the language of Eurocrats. It looks like just like a, you know, a page of numbers or but it's so meaningful and it's like a sometimes the smoking gun and sometimes it's just sort of an indication to you of where you can dig further or what's there. But for me, some of the rewarding moments of my career have been, you know, looking at a particular document, suddenly realizing its import for a case.

00;42;01;12 - 00;42;18;11

Dror Ladin

And so I really identified with, with her sort of dogged, you know, digging through these just terrible records. And maybe in particular, I liked the one where she brought her kids and is getting sort of, you know, yelled at by the clerk who saying, like, you really need to get out of here. You've been here for way too long.

00;42;18;13 - 00;42;36;00

Dror Ladin

And she tells him, you know, these records are public records, and I'm going to get at them. And and you know that I've not had the experience of the records I've dealt with usually, you know, often come from from secure locations. And you can't just like, you know, route around there yourself. But that, that just sort of instinct of like, this should be public.

00;42;36;00 - 00;42;50;26

Dror Ladin

And, you know, if you have something to hide, then that's already a problem. And that's not how any of this should work. And so I am really concerned about that, the disappearance of record keeping. But I do you know, I think this movie brings home how important those records are.

00;42;50;28 - 00;42;53;02

Jonathan Hafetz

Anything else we should do, we should touch on or.

00;42;53;06 - 00;43;06;13

Dror Ladin

I don't know. Do you have any thoughts as as a dad on whether or not the the practice of law was compatible with with the parenthood of young children? That's sort of a theme that runs through the domestic Erin Brockovich saga.

00;43;06;16 - 00;43;23;21

Jonathan Hafetz

Yeah. I mean, well, there's a whole side plot, which you even talk about with her, her boyfriend or quasi boyfriend, Aaron Eckhart, who's taking care of the kicking of the kids. But all the challenges that she has to do, I don't. I think it there is this sort of personal aspect for her. Like it does become very personal.

00;43;23;21 - 00;43;36;03

Jonathan Hafetz

And in the end, that's what Cesar through to get justice. But there is sort of a question, I think, which movie doesn't really, I think, get into about like keeping the personal and the professional apart. I don't know what were your thoughts?

00;43;36;05 - 00;43;54;27

Dror Ladin

I think that, you know, the movie is not like a social realist piece or something, but but especially in the beginning, it sort of shows how hard it is for her as like a, you know, a mom of three kids who's certainly facing some precarity. She's like on the edge of unpaid bills and everything else to the bone where she's excited to get into a car accident.

00;43;54;29 - 00;44;15;28

Dror Ladin

So it kind of shows at times her struggles to to have child care and then also some resentment from her kids for her not being available because she's, you know, so doggedly pursuing this case. You know, I feel like the practice of law can be very consuming, you know, and it can demand a lot of people. I certainly think that a lot of the stuff I was able to do.

00;44;15;29 - 00;44;39;04

Dror Ladin

Earlier in my career was in part because I could just dedicate so much time to, to work just because I didn't have childcare responsibilities, I didn't have other responsibilities with kids. I do find it gives me a different perspective on whether, you know how many client meetings you know, at night you're going to go to or how many just, you know, all nighters, you're going to pull polishing something or researching something.

00;44;39;05 - 00;45;10;07

Dror Ladin

So I thought, you know, obviously she's dealing with it in this whole other more complex way of being, you know, a single mother and in a very, you know, patriarchal and backward sort of profession that, you know, I hope has made improvements since she was experiencing in the 90s, but definitely, you know, still has that. And, you know, and as a person who's really struggling with precarity for a lot of the movie, but I thought it was nice to show those tensions because I've seen, you know, both in my life and others, you know, people struggling with the question of how do you how do you do?

00;45;10;10 - 00;45;14;22

Dror Ladin

How do you balance, you know, kids with high profile, very demanding litigation.

00;45;14;24 - 00;45;41;21

Jonathan Hafetz

Just to balance the kids. And she's also, you know, she's not a lawyer and she's also it just feels she's not really polished in the law firm way. I mean, that's sort of for secret power in some ways in terms of relating to people. But you see that interactions with the firm and then especially with the other white shoe firm and interactions with the partner and the both of the male partner and the female partner at the large firm, where she just seems like there's like this cultural kind of clash, which is about, I think, class and gender.

00;45;41;23 - 00;46;20;15

Dror Ladin

Yeah. Yeah, absolutely. Yeah. We didn't take into that as much. But yeah, it is, it is. It's especially funny like, I don't, I don't have the greatest grasp of the, of the taught bar. But I've seen a few taught lawyers who I'm not aware of like what their actual class background is, but their presentation in the courtroom is often there's often such a contrast between the the plaintiffs law and the defendants are often in the sense that the well, while the defendants will work for a white shoe firm and the plaintiffs are will not, the plaintiffs law will often try to, like, dress up and be like hyper professional and respectable, whereas the defendants lawyer

00;46;20;15 - 00;46;38;12

Dror Ladin

will come in with like the, you know, the scuffed shoes and like and like try to be much more like, you know, a man of the people. So it was interesting here where it kind of had those dynamics, right. This like this, like superstar, master, plaintiff, lawyer, I guess. I guess he was also the defense horse and he was on the other side of the airline case, whatever that was the lawyer alludes to.

00;46;38;14 - 00;46;51;12

Dror Ladin

But here is on the plaintiff side, is just like the most, you know, brittle, just like non-personal suit. And Aaron is like, you know, this just avatar of human outrage and gumption.

00;46;51;18 - 00;47;14;04

Jonathan Hafetz

Yeah. No, it sort of captures that. Yeah. I feel like it does a pretty good job capturing like some of those dynamics and subtleties circa at least circa 2000 or, you know, when it was made. I mean, I think things have changed somewhat. Not completely. Yeah. Well, it's been great to have you on the podcast. Thanks so much for coming on and talking about Erin Brockovich and a host of environmental and other issues.

00;47;14;07 - 00;47;16;05

Dror Ladin

It's been wonderful. Thanks so much for having me.