Governor Goes to Court to Try to Foil Ruling on Toxics List

Gov. George Deukmejian on Friday appealed a court order that would force him to add 201 chemicals to the list of substances covered by Proposition 65, the anti-toxics initiative overwhelmingly approved by voters in November.

The decision to fight the Superior Court ruling, which had been scheduled to go into effect on Monday, blocks, at least temporarily, the addition of such commonplace chemicals as formaldehyde and chloroform to the governor’s initial list of 29 substances known to cause cancer or birth defects.

Deukmejian, in Southern California when legal papers were filed with the 3rd District Court of Appeal in Sacramento, noted that the court order was the opinion of “one superior court judge”--Sacramento County Superior Court Judge Roger K. Warren, who two weeks ago ordered the governor to expand the list.

Criticizes Arguments

Using forceful language to explain his ruling, Warren said that Deukmejian and his attorneys had used “strained and tortured” arguments to defend their decision to include on the initial Proposition 65 list only chemicals known to cause cancer in humans and to exclude those shown to cause cancer in animal experiments.

“There are many other lawyers that we consulted with that have a different opinion,” Deukmejian said during a taping of KNBC-TV’s “News Conference,” to be shown on Sunday.

After the taping, Deukmejian repeated his defense of his “common-sense approach” to implementing the controversial ballot initiative by letting an appointed panel of scientific experts decide which additional substances should be on the list and not “someone like myself or someone in politics.”

The governor’s decision to file an appeal was immediately attacked by backers of Proposition 65, who accused Deukmejian of trying to please industry groups that had opposed the tough ballot measure.

Called ‘Tactic of Delay’

“The appeal is a deliberate tactic of delay,” charged Carl Pope, political director of the Sierra Club, one of the authors of the ballot measure. Pope predicted that the legal fight will end only when the case is settled by the California Supreme Court, probably sometime next year. “This was the time to decide, to try to make things work rather than try to screw them up,” Pope asserted.

Because state Atty. Gen. John K. Van de Kamp refused to defend the governor’s position in court, Deukmejian was forced to arrange a $45,000 contract with private attorneys to fight a court action brought against him by a number of labor and environmental groups, including the Sierra Club, the AFL-CIO, the Environmental Defense Fund and the Natural Resources Defense Council. Pope said further appeals could cost taxpayers an additional $100,000.

While waiting for the courts to resolve the case, Proposition 65 sponsors are promising “to mobilize public opinion to put pressure on the governor and to hold him accountable for this evasion of the mandate of the election,” said Assemblyman Tom Hayden (D-Santa Monica), one of the measure’s chief sponsors.

The governor’s list of chemicals is the key to the measure’s tough enforcement provisions, which subject violators to citizen suits and fines of up to $2,500 a day. Twelve months after a chemical is listed, businesses must warn consumers and workers of exposure to significant amounts of the substance. Twenty months after a chemical is placed on the list, firms are barred from discharging it into potential drinking water supplies.

Deukmejian’s health and welfare undersecretary, Thomas E. Warriner, argued that the governor has taken a reasonable middle ground in interpreting Proposition 65. He pointed out that the governor’s initial list of 29 substances includes several categories of chemicals, including birth control drugs and an ill-defined group of “soots, tars and mineral oils.”

“We don’t have 29 chemicals here,” Warriner said. “We have hundreds of chemicals. . . . I don’t think you are going to find anyone in industry who is going to say this is a sweetheart list.”

But Pope of the Sierra Club contended that Deukmejian has decided to fight industry’s battle for it, at public expense.

Paul Jacobs reported from Sacramento, Doug Shuit from Burbank.