Three companies found to have sold toxic lead paint for decades—despite knowing it posed health hazards for children—are waging a major battle to avoid paying the several hundred million dollars in liability that California courts have slapped on them.
And they’re asking you, the California voter, to help them get their way.
After losing an 18-year-long legal fight, ConAgra, NL Industries and Sherwin Williams are now working on two different fronts to overturn the ruling, which says they must pay to clean up lead paint in older homes in 10 cities and counties across California.
The companies have hired a slew of lobbyists to push their agenda in the state Legislature and poured $6 million into a campaign to put an initiative on the November ballot that would shift clean-up costs to taxpayers.
Their argument: The ruling rewards landlords who have neglected their properties, and also creates new burdens for homeowners whose houses have lead paint but do not qualify for abatement funding based on criteria set by the court.
The effort has kicked up an intense response from Democratic legislators who represent the cities and counties that sued the companies in 2000 over the hazards posed by lead paint.
“The lead paint companies are the new tobacco companies of 2018. After many, many decades of… knowingly and intentionally deceiving the public about their products, they are now trying to escape liability through whatever way they can,” said Democratic Assemblyman David Chiu, whose city of San Francisco was among the plaintiffs.
“We need to make sure that someone is going to pay for tens of thousands of children who are being poisoned by lead.”
Lead was a common paint ingredient in the early 20th century. Over time scientists found that lead exposure causes brain damage in young children. In 1951 manufacturers began putting a warning label on lead paint, and in 1978 stopped selling lead paint in the United States. But many old homes still have lead paint on the walls or windowsills. And it is dangerous when it deteriorates because children may eat paint chips or inhale toxic dust.
The court decision—which the state Supreme Court recently declined to review on appeal—requires the companies to pay into a fund that would be used to clean up lead paint in homes built before 1951 in seven counties (Santa Clara, Alameda, Los Angeles, Monterey, San Mateo, Solano, Ventura) and three cities (Oakland, San Diego and San Francisco). Those jurisdictions combined are home to almost half the population of California. The exact amount the companies must pay is still being determined. The trial court set it at $1.15 billion to cover homes built before 1981, but the appellate court ruled that only homes built before 1951 should be covered and directed the trial court to reduce the amount.
The ruling doesn’t require complete removal of lead paint from those homes, but says they must be fixed by sealing old paint or replacing parts of windowsills or doors. Priority for repairs goes to homes where children have been poisoned by lead, or where there’s a history of violating building codes and laws meant to prevent lead poisoning.
“Property owners who have neglected their responsibility to those families now get a windfall abatement plan,” said Tony Dias, a lawyer for Sherwin Williams. He added that the paint companies would appeal their loss to the U.S. Supreme Court.
Meanwhile, the ballot measure the paint companies have sponsored would reverse the ruling, block future lawsuits for similar claims, and create a bond using taxpayer funds to pay for repairing an array of environmental hazards in homes across the state—not just the 10 places that sued. The $2 billion bond could be used to remedy mold and asbestos in addition to lead paint. With interest, the bond would cost taxpayers $3.9 billion.
“It’s a broader solution to the problem we’re facing,” said Kendall Klingler, a spokeswoman for the ballot measure campaign.
The ruling is problematic for homeowners in the 10 municipalities whose houses were built between 1951 and 1981, the campaign contends, because it deems the lead paint in those homes a public nuisance but does not provide funding to abate it.
“Overturning the court ruling will obviously benefit the paint companies but it’s really beneficial to homeowners. Right now their fates are tied as long as this court ruling stands,” Klingler said.
It’s rare for groups that lose in court to try to overturn an unfavorable ruling on the ballot. But it’s not uncommon for interest groups lobbying for a new law in the Legislature to simultaneously launch a ballot measure drive. The threat can be used as leverage to get what they want from the Legislature instead.
It’s not yet clear if that’s the goal of the paint companies here. They’ve submitted the signatures necessary to put their initiative on the November ballot and counties are now checking if they are valid. Initiative backers could pull their measure off the ballot up until June 28. They have launched a publicity campaign that calls on the Legislature to “craft a real solution”—but so far no bills have been introduced that advance their aim.
For now the paint companies are working with other business interests to kill a slate of bills introduced by legislators from the regions that brought the lawsuit. Their bills would expand the scope of the court ruling and make it easier for people to sue over lead paint.
If the companies have any shot of making a deal in the Legislature, one bloc of lawmakers will be critical: the moderate Democrats who are typically the swing vote in stand-offs between environmentalists and big business.
The paint companies’ campaign has reported making payments to David Townsend, a political consultant who has close ties to the caucus of moderate Democrats. He wouldn’t talk about the strategy he’s crafting but said that generally speaking, “most organizations would rather work it out in the Legislature than pay for a big ballot measure.”
The leader of the moderate caucus said he’s met with the paint company lobbyists but that conversations are in early stages and the issue isn’t a huge priority for him.
“Hopefully we can come to a legislative solution that protects Californians, protects children and takes care of any homes that need to be abated,” said Assemblyman Adam Gray, a Merced Democrat. “But at the end of the day, the folks that are responsible for the lead paint ought to be the ones who pay.”