Abetted by plaintiffs firms like Motley Rice, 10 California county and municipal governments claim the ancient paint that still exists on private property should qualify as a public nuisance and requires remediation. Their ship came in with Judge James Kleinberg, who ruled on Monday thatSherwin-Williams, ConAgra and NL Industries must pay into a $1.1 billion fund to remove remnants of the paint. DuPont and Atlantic-Richfield were dropped from the suit because there was no evidence they had marketed their paint in California.
The marketing point should have reminded Judge Kleinberg that all the companies sold a legal product and had no way to know of the risks that lead in paint would later be discovered to pose. When much of the paint was sold in the 1920s and 1930s, its use was recommended by federal and state governments for its ability to stand up to scrubbing. This helped eliminate germs and the threat of contagious diseases.
The decision also contradicts current guidance from the Environmental Protection Agency, the Centers for Disease Control and Prevention and the Department of Housing and Urban Development, which endorse a policy of maintaining lead paint in good condition rather than removing it. With lead paint off the market for decades, the perils now come when it is neglected, left peeling and chipping, or is ingested.
Judge Kleinberg writes that “governmental agencies charged with public safety may have been late to their conclusions that lead was poisonous. But that is not a valid reason to turn a blind eye to the existing problem. All this says is medicine has advanced; shouldn’t we take advantage of this more contemporary knowledge to protect thousands of lives?” That sounds more like an op-ed piece than a legal opinion.
California’s strategy of properly maintaining the paint has caused blood lead counts to fall to almost nonexistent levels, an average of less than one microgram per deciliter and among the lowest in the U.S. Judge Kleinberg’s “solution” will create its own hazards of further liability for hospitals or public playgrounds. It could also make it harder for owners of older houses or apartments to sell or rent their property since so many contain paint that is now officially a public nuisance requiring abatement.
Similar nuisance theories have been greeted with incredulity in other state courts, and the paint companies plan to appeal if the judge doesn’t revise his “proposed” judgment. But if California homeowners hear in the meantime what the courts have in store for their property, they can thank the plaintiffs bar and Judge Kleinberg.