Column: In landmark ruling, court orders paint companies to pay to clean lead paint out of California homes

By Michael HiltzikBusiness Columnist

Nov. 15, 2017 1:55 PM PT

In a ruling that could set a precedent for lawsuits over the effects of climate change, a panel of appeals judges on Tuesday found three paint manufacturers responsible for the health hazards of lead paint in California homes and upheld an order that they pay to abate the dangers.

The companies — ConAgra, NL Industries and Sherwin-Williams — had been ordered by a trial court in 2014 to pay a combined $1.15 billion for a lead paint abatement program in 10 counties and cities covering homes built before 1978, when lead paint in homes was outlawed.

For the record:

2:10 p.m. Nov. 15, 2017An earlier version of this article identified a Sherwin-Williams attorney as Antonio Diaz. He is Antonio Dias.

In their ruling issued Tuesday, three judges of the California Court of Appeal narrowed the program to homes built before 1951, when the paint companies said they ceased actively advertising residential lead-based paint. It isn’t clear how much the abatement fund would be reduced by the order, though an attorney for the plaintiff counties and cities estimated that the companies still would be on the hook for about $600 million.

Thousands and thousands of homes are out there still with lead paint in their interior walls.

— Joseph Cotchett, attorney for cities and counties suing lead paint manufacturers

“This case is all about children,” said the attorney, Joseph Cotchett. He observed that thousands of children in low-income families in Los Angeles alone have been shown by tests to have elevated levels of lead in their blood.

Even though lead hasn’t been used in homes in decades, he said, “thousands and thousands of homes are out there still with lead paint in their interior walls.”

The appellate ruling may have ramifications beyond the hazard of lead paint. That’s because the judges upheld the plaintiffs’ argument that the marketing of lead paint created a “public nuisance” — a doctrine commonly applied to landlords operating drug dens or factories with noxious emissions, but seldom on broad environmental grounds. A similar public nuisance argument is at the heart of lawsuits recently filed against major fossil fuel companies by cities and counties in California blaming them for a sea-level rise associated with climate change.

“Like the lead paint case,” says Vic Sher, a San Francisco attorney representing the city of Imperial Beach and San Mateo and Marin counties in sea-level cases, “we have an industry that knew its products could inflict serious damage and continued to promote those products anyway.” The lawsuits, which Sher estimated could lead to “billions and billions” in judgments against the oil industry, were filed in California state court but have been moved to federal court at the defendants’ request.

“The cases are strikingly similar,” says Sean Hecht, an expert in environmental law at UCLA. “As of yesterday’s ruling, those sea-level rise cases are far more likely to advance past the first litigation hurdle.”

The defendant paint companies say they’ll appeal the ruling to the California Supreme Court.

“We disagree with the appeals court’s determination relative to the public nuisance issue,” says Antonio Dias, an attorney for Sherwin-Williams. He argued that the effect of the ruling is to “stigmatize” owners of homes built before 1951 by labeling their properties a public nuisance. “They’re wearing a scarlet letter.”

He added that no abatement program on the scale ordered by the courts “has been done anywhere in the country,” and that the process of removing or covering the remains of lead paint in aging homes “could create additional lead hazards.”

Cotchett, meanwhile, said he would recommend that the cities and counties appeal to the state Supreme Court to return the abatement program to its original application to pre-1979 homes.

As we reported in April, the lead-paint litigation had been wending its way through the California court system for 17 years. That made it one of the longest-lived lawsuits in the state, outlasting the original trial judge, James P. Kleinberg of Santa Clara, who retired shortly after issuing his 2014 ruling. Kleinberg held the three companies liable for the actions of their predecessor firms and ordered them to put up $1.15 billion to inspect more than 3.5 million California homes and apartments and remove or abate residual lead hazards. That means painting over deteriorating surfaces and removing lead chips and dust, especially in units housing children.

The original manufacturers, Kleinberg found, energetically promoted the use of lead in house paint to improve its durability and water-resistance, even though the dangers of lead had been known “since antiquity.” The appellate panel found that the manufacturers’ “promotion of lead paint for interior residential use necessarily implied that lead paint was safe for such use.”

Indeed, trial evidence suggested that the industry saw the risk of health effects from lead paint to be chiefly a PR problem, with the dangers mostly concentrated in low-income ethnic neighborhoods.

“Aside from the kids that are poisoned, it’s a serious problem from the viewpoint of adverse publicity,” an industry health official wrote in 1956, according to legal filings in the case. “The basic solution is to get rid of our slums, but even Uncle Sam can’t seem to swing that one. Next in importance is to educate the parents, but most of the cases are in Negro and Puerto Rican families, and how does one tackle that job?”

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