Labeling Gov. George Deukmejian's interpretation of Proposition 65 as "strained and tortured," a Superior Court judge Friday ordered the governor to add 201 chemicals that cause cancer or birth defects to the list regulated by the anti-toxics initiative.
Sacramento County Superior Court Judge Roger K. Warren ruled that in giving the ballot measure overwhelming approval last November, voters intended for the measure to apply to a long list of chemicals identified as causing cancer in humans or animals. The list was prepared by two widely respected cancer agencies: the International Agency for Research on Cancer and the National Toxicology Program.
Proposition 65 says that "at a minimum," the governor's list should include chemicals recognized by the state Labor Code as causing cancer and birth defects. The code, in turn, accepts as authoritative the lists published by the two cancer agencies.
But Deukmejian contended that he is only required to initially list the 26 chemicals that the two agencies say have been proven to cause cancer in humans and the three other substances shown to cause birth defects, stillbirths or sterility.
Among the substances that Warren ordered added to the Proposition 65 list are such common chemicals as formaldehyde, which is present in a large variety of food and lumber products, as well as in cosmetics, and aflatoxins, naturally occurring contaminants of peanut and corn products.
The decision was at least a temporary victory for the labor and environmental groups that brought the suit, including the AFL-CIO, Sierra Club and Environmental Defense Fund.
However, Warren delayed the effective date of his order until May 11 in order to give Deukmejian an opportunity to appeal.
"Obviously, an appeal is one of the alternatives," said Deputy Health and Welfare Secretary Thomas E. Warriner, the Administration official responsible for implementing Proposition 65. That decision will not be made until the governor's attorneys have had a chance to review the transcript of the hearing, Warriner said.
Day of Remembrance
Deukmejian was in Southern California for the Day of Remembrance for the genocide of Armenians by the Ottoman Turks, and his staff said that he would have no comment on any other issues.
Proposition 65's principal supporters, who have accused Deukmejian of deliberately obstructing the purpose of the ballot measure, were in a jubilant mood after the court decision. The ruling "says that Proposition 65 is not going to be blocked by legal gamesmanship, even when it's from the governor of the state," said David B. Roe, an attorney for the Environmental Defense Fund and one of the authors of the initiative.
"This is a significant triumph for public health and a setback for a governor whose image has been one of law enforcement," said Assemblyman Tom Hayden (D-Santa Monica), who with his wife, actress Jane Fonda, was the ballot measure's principal financial backer.
The governor's list is central to the implementation of the anti-toxics measure. Twelve months after a chemical is placed on the list, businesses must warn consumers and workers of exposure to significant amounts of the substance. After 20 months, the firms face fines of up to $2,500 a day should they discharge a listed chemical into the state's drinking water supplies.
Deukmejian and his attorneys insisted that he was required at the outset to list only those chemicals proven to cause harm to humans and not those suspected of causing human cancer or birth defects based on animal experiments.
On Feb. 27, Deukmejian issued his short initial list of only 29 chemicals. At the same time, he appointed a 12-member scientific panel and said that he would leave it to scientists--and not special-interest groups or politicians--to decide which suspect chemicals represented a threat to humans and ought to be added. Within hours, attorneys for the labor and environmental groups filed suit, charging that Deukmejian had listed only one-tenth of the chemicals that he was required to list.
When state Atty. Gen. John Van de Kamp refused to represent the Administration in the lawsuit, Deukmejian was forced to turn to a private firm to defend his position. Deukmejian's attorneys, led by Charles A. Barrett of Sacramento, argued that the governor should be given a reasonable amount of latitude in administering the law. Proposition 65 required the governor to rely on scientists to tell him what substances were, in fact, "known to cause cancer," Barrett said.
However, Warren flatly rejected on legal grounds Deukmejian's effort to distinguish between chemicals that cause cancer in animals and those proven to cause the disease in humans.
"If you're asking me if the purpose of the statute is to protect people, not rats, I agree with you," Warren said in response to arguments from Deukmejian's attorneys.
But the judge cited a widely accepted "scientific tradition" of using animal experiments to determine potential risks of harm to humans. Warren said he was persuaded that the language of the statute called for the governor, at a minimum, to include chemicals for which the two scientific agencies found sufficient evidence that they cause cancer, whether in humans or laboratory animals.
During the hearing, Warren noted that he did not take lightly the decision to order the chief executive officer of the state to take action but said that the arguments made by those who filed suit against Deukmejian were "totally" convincing.
The judge noted that Deukmejian, a former attorney general, is a lawyer.
"If the governor were sitting where I am sitting, he would arrive at the same conclusion," Warren said.
In deciding to order the governor to add chemicals to the Proposition 65 list, Warren said that the measure itself expressed the people's mistrust and impatience with their government.
The initiative's opening section, which the judge referred to, says "that state government agencies have failed to provide (the people) with adequate protection" from the effects of toxic chemicals.
Warren argued that to wait any longer in implementing the required minimum list of chemicals would only add to that mistrust of government and would subject Californians to further exposure to chemicals that cause often incurable disease.
The chemicals that would be added to the Proposition 65 list under Warren's order include chloroform, a contaminant of chlorine-treated drinking water, and polychlorinated biphenyls, a family of chemicals once used in transformers and other electrical parts.
A number of the substances are pesticides that have been banned from use by the U.S. Environmental Protection Agency, including DDT and ethylene dibromide or EDB, which was once widely used to kill insects in stored grain. Also on the list is the artificial sweetener saccharin, which already is required under federal law to be labeled as causing cancer in animals.