California lead paint initiative comes under fire

Wednesday, May 23, 2018

Kathy Murphy, The Mercury News

SACRAMENTO — In dramatic fashion, state lawmakers on Wednesday ripped into a California ballot initiative to have taxpayers, not paint companies, pay for lead-paint cleanup while overturning a landmark court ruling that made three manufacturers liable for the cost.

After hearing a panel of paint company representatives and initiative supporters quote President Barack Obama and invoke the racially discriminatory and since-banned practice of “redlining” in mortgage lending, lawmakers exploded.

“I’ve never heard such deceptive testimony in my life,” Assemblyman Bill Quirk, D-Hayward, told the panel, which included an attorney for Sherwin Williams. “It takes a lot to get me angry — you have gotten me angry.”

The three-hour joint committee hearing at the Capitol zeroed in on a $2 billion environmental cleanup initiative that Sherwin-Williams, ConAgra and NL Industries hope to land on the November ballot. The paint companies launched the initiative — calling it the “Healthy Homes and Schools Act” — to undo an unfavorable ruling on a case it has been fighting for more than 17 years.

Late last year, an appeals court mostly upheld a 2014 trial court ruling in Santa Clara County, making the companies liable for hundreds of millions in cleanup costs on homes built before 1951. The decision requires them to pay into an abatement fund for seven counties — Santa Clara, Alameda, Los Angeles, Monterey, San Mateo, Solano, Ventura — as well as for Oakland, San Diego and San Francisco.

The companies created a public nuisance, the court found, by marketing the paint long after they became aware of the severe health effects of exposure. The California Supreme Court declined to review the case, and the defendants are appealing to the U.S. Supreme Court.

If the companies’ ballot initiative is successful, however, lead paint would no longer be deemed a public nuisance in California, trial courts could not use the landmark decision as a precedent for future rulings on lead-paint lawsuits filed in other parts of the state, and California would borrow $2 billion for a statewide cleanup of lead, mold and other environmental hazards. The total cost to the taxpayers is estimated to be $3.9 billion.

“I don’t know if this was contemplated by our founding fathers of direct democracy, that a defendant would use the initiative process to overturn a judicial decision made against them,” Sen. Bob Wieckowski, a Fremont Democrat who heads the Senate Environmental Quality Committee, said at the hearing.

Lead poisoning is a serious public health issue that can cause irreversible brain damage to children as well as premature birth and miscarriage. And even though lead paint was banned in homes and toys in 1978, hundreds of thousands of California homes built before then still have it.

“The problem didn’t go away after 1978, and it is going to be around for a long time to come,” said Larry Brooks, head of Alameda County Healthy Homes program, which does lead abatement. Brooks said his county alone averages more than 350 cases annually.

Physicians and public health experts who also testified Wednesday said that it is difficult to treat children after they have been exposed to lead paint and that the court ruling would provide a much-needed funding source for cleanup. “To treat it is to prevent it from occurring in the first place,” said Dr. Cyrus Rangan, director of the toxicology and environmental assessment branch of the Los Angeles County Department of Public Health.

The companies have argued that the court ruling unfairly labels older California homes as public nuisances, putting homeowners at risk of lawsuits and lowering their home values. During a call with reporters, an attorney for Sherwin Williams said some lawmakers have expressed interest in reaching a deal with companies behind the ballot initiative, but he did not name names and said he had not heard of specific proposals.

“The Legislature understands that they are better equipped to deal with an issue than the courts are,” said the attorney, Tony Dias.

But the appellate court decision says a central assertion by the paint companies — that the original court ruling declared individual properties to be public nuisances — is not true. “Not so,” the appellate panel wrote. “The trial court ordered defendants to abate the public nuisance they had created, but it did not identify any specific properties. The abatement plan itself is designed to identify and remediate the individual properties upon which defendants’ public nuisance exists.”

The trade group representing real-estate agents also testified Wednesday that the ruling would not affect property values, alter required disclosures or make homeowners more vulnerable to lawsuits.

Raul Alvillar, the Democratic National Committee’s former national political director who is now a consultant for the initiative campaign, called the court ruling “bad public policy.” At the hearing, Alvillar, who worked in the Obama administration, quoted from the president’s 2016 speech to families in Flint, Michigan, where lead had been leaching into the water supply.

“He recognized that we know now that we did not know then about problems for children from exposure to lead,” Alvillar said.

But Democratic lawmakers reacted negatively to the use of Obama’s words, saying it wrongly suggested the former president was supportive of the paint companies’ ballot initiative. “I think President Obama would stand for the principle that if you’re responsible for creating harm you ought to have a role in helping to clean it up,” said Assemblyman David Chiu, D-San Francisco.

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Santa Clara County Counsel James Williams, whose office took a leading role in the case and a recent $60 million settlement reached with one of the three defendants, NL Industries, says that the companies are engaged in a “disinformation campaign” to mislead voters into absolving them of liability.

“We’re talking about poisoning toddlers and infants,” he said, “and companies that knowingly marketed the product.”

Meanwhile, state lawmakers have introduced a package of bills to protect homeowners and make it easier to sue paint companies. One proposal, by Quirk, would charge a fee to paint manufacturers to help pay for lead abatement on homes — a charge that would only take effect if the ballot initiative passed.