In summary

California voters approved an initiative in 1986 that allowed citizen enforcement of pollution laws and exposure to toxic chemicals.

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By Paul Kronenberg, Special to CalMatters

Paul Kronenberg is a retired trade association executive with 40-plus years experience working with California’s Legislature and regulatory agencies.

In the wake of the U.S. Supreme Court arguments of the private enforcement in the Texas abortion law we can look at it as just the latest example of cultural and economic clashes that have riven America. 

Liberals and conservatives have long concluded that pursuit of ideological agendas can be better accomplished outside of normal government and social structures.

Private Attorney General Acts, known as PAGA, have been around awhile, but progressive Californians demonstrated its real power decades ago. Thanks to an emerging environmental ethic among Democratic legislators, California voters got a chance to approve an initiative in 1986 that allowed citizen enforcement of pollution and unwarned exposure to toxic chemicals. 

Sold as consumer protection, of which there is a grain of truth, Proposition 65 at its core was the left’s attack on business and capitalism. While preserving the ability of lawsuits to be brought by the attorney general or local district attorneys, Prop. 65 empowered private citizens to sue.

Why allow citizens to enforce the law? And why establish the right through a ballot initiative? Because environmentalists understood the need to sever enforcement responsibility from Democrats in office and their business community donors. 

And, it allowed Democrats to be tough on an issue while blaming enforcement problems and impacts on private citizens. With every violation subject to a $2,500 fine per day it’s easy to see private enforcement is a lucrative business.

The result has been 35 years of bureaucracy, regulatory costs, multiple millions of dollars in settlement costs and a cottage industry for lawyers and environmental nonprofit organizations. 

Californians have been so buried in a blizzard of toxic chemical exposure warnings that notices have become second nature and part of store decor. Interestingly, the first part of Prop. 65 which focuses on protecting drinking water, has drawn little interest from private enforcers.

Prop. 65 has added to the cost of living in the state and reinforced what humans subconsciously know – life is, indeed, hazardous.

This state has a history of enacting Private Attorney General Acts laws. Lawmakers can satisfy a narrow constituency for political purposes and shrug off the impact of a new law’s implementation. Another example is the state’s laws on access for disabled citizens.

Thanks again to progressive Democrats, citizens got to enforce violations of the state’s version of the Americans with Disabilities Act. At the cost of $4,000 per violation the impact has been another cottage industry of access enforcement lawyers and nonprofits that have driven settlements from mostly small businesses, as well as costly access infrastructure changes. It results in higher costs to Californians.

But, now in Texas, the left’s playbook has been flipped. Private enforcement against abortion providers is a new chapter in the culture wars. While it may spur its own cottage industry over time if the U.S. Supreme Court allows the law to survive, the private enforcement model may have a more profound impact as other conservative states seek to eliminate other liberal policies.

The same political dynamic exists in Texas as it does in California only for different political parties. The anti-abortion private enforcement law shelters state government and the Republican Party from its impact. Citizens are motivated to enforce the law both culturally and through its $10,000 fine. But, more insidiously, it creatively challenges national law. It suppresses an activity that is recognized by the U.S. Supreme Court as legal unlike California’s approach which adds stricter layers of regulations coupled with private enforcement.

Private enforcement in the Texas anti-abortion law if not curtailed by the U.S. Supreme Court may be the lever that unleashes a cascade of Private Attorney General Acts activism that splinters federalism.

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