New Breed of Bounty Hunter to Hit Polluters

Soon in California there will be a new breed of bounty hunters. Their target will be corporate polluters. Their weapon will be a potent new law: Proposition 65, the anti-toxics initiative.

Environmentalists and other citizens, who often have been powerless to halt pollution in their communities, will be able to haul offenders into court and seek huge penalties against them for exposing the public to cancer-causing chemicals.

The reward for bringing lawbreakers to justice will be large. Beginning Feb. 27, anyone who wins a Proposition 65 lawsuit will receive 25% of the fine assessed by the court against a business found in violation of the law.

Environmentalists, who are known more for championing causes than for making money, may soon get a lesson in what the profit motive is all about.

“Its major contribution is going to be to enlist private citizens in the battle to prevent toxic contamination of drinking water and the environment,” said Al Meyerhoff, an attorney with the Natural Resources Defense Council. “It’s unique, and will have a dramatic effect on industry.”

Under Proposition 65, which won with 63% of the vote in 1986, businesses are prohibited from exposing the public to chemicals known to cause cancer or birth defects unless they first provide a “clear and reasonable” warning of the danger. The warning requirements take effect for 29 chemicals at the end of this month.

Businesses that violate the initiative can be fined up to $2,500 a day for each individual exposed to a toxic chemical--a penalty that could quickly add up to substantial sums of money.

The initiative will also make it easier for citizens to win toxic cases in court by shifting the burden of proof onto businesses and requiring them to demonstrate that the chemicals they use do not pose a danger to the public.

The prospect of hundreds of citizen lawsuits with fines potentially reaching into the millions of dollars has sent shock waves through the business community.

Possible Abuse Seen

“Anybody can bring a lawsuit,” protested John Hunter, a lobbyist for the California Manufacturers Assn. “It certainly puts a tool in the hands of some people who want to abuse it.”

Both environmentalists and business leaders realize that judicial decisions in the first Proposition 65 lawsuits will shape the way the initiative is enforced for years.

For that reason, environmental lawyers are planning to pick their initial cases with care, zeroing in on clear-cut violations that are likely to bring substantial penalties.

“We are not supportive of widespread or thoughtless or scatter-gun enforcement,” said David Roe, an attorney for the Environmental Defense Fund and a principal author of the initiative. “There are going to be a few cases, they are going to be carefully thought-out and they are going to be well-aimed.”

The fears of corporate executives were intensified recently when the Sierra Club, the Environmental Defense Fund and the Natural Resources Defense Counsel sponsored a two-day conference in Los Angeles to teach attorneys how to take advantage of the new law.

Firms Sent Own Lawyers

Dozens of companies were so worried that they sent their own lawyers to the conference. One firm, the Kerr-McGee Corp.--perhaps best known for operating the Oklahoma plutonium plant where Karen Silkwood was exposed to radiation--even requested a group rate for its attorneys, organizers of the meeting said.

At the conference, legal experts outlined how to bring a successful lawsuit under Proposition 65, using such hypothetical examples as an oil refinery that emits dangerous levels of benzene and a lumberyard that sells products treated with an arsenic-based wood preservative.

Both arsenic and benzene are among the 29 chemicals that will be subject to the initiative’s warning requirements beginning Feb. 27. They are also widespread in the environment and have a broad variety of commercial uses that come under the restrictions of the initiative.

Proposition 65, according to its backers, was designed to persuade businesses that it is cheaper to eliminate toxic chemicals than it is to endanger the public health--and that they run a high risk of being caught if they break the law.

“What better incentive for industry to get these chemicals out of the marketplace than the threat of substantial penalties,” said Meyerhoff, the Natural Resources Defense Council attorney. “Unfortunately, corporations seem to listen best when their assets are under threat of diminution.”

Bankroll for Movement

As an added insult, companies that are penalized for violating the initiative may help bankroll the environmental movement. Meyerhoff and other activists plan to use proceeds from their first successful Proposition 65 lawsuits to create a legal fund to finance a wide range of cases.

“The environmental community hopefully will increase its legal resources a hundredfold,” Meyerhoff said.

The name “bounty hunter” was first given to the citizen lawsuit provision by opponents of Proposition 65 during the 1986 campaign. Backers of the initiative prefer to think of citizens who will take advantage of the law as “private attorneys general.” But under either title, environmentalists predict that lawsuits filed by individuals will be the key to enforcing Proposition 65.

Under the initiative, state and local prosecutors have the choice of taking over any lawsuit filed by a bounty hunter. Before going to court, an individual seeking to bring a Proposition 65 case must first send a warning notice of an alleged violation to both the company involved and to government prosecutors.

During the next 60 days, the state attorney general, the county district attorney and the city attorney all have the option of stepping into the case and attempting to win the 25% reward for their offices. If prosecutors decide not to take over, the individual who filed the original notice can proceed to court.

Puts on the Heat

“This provision will keep the heat on me and other prosecutors to enforce the law,” said Los Angeles City Atty. James Hahn.

Or as Meyerhoff put it: “It gives us (environmentalists) the ability to go in and do the job of government when they fail to do it.”

The provision for citizen lawsuits has its roots in federal laws that allow individuals to bring suit for alleged violations of civil rights and environmental statutes. Citizen lawsuits frequently have been used to enforce these laws and at times have been more effective than governmental action.

The National Resources Defense Council, for example, has brought more enforcement cases under the federal Clean Water Act in recent years than has the Environmental Protection Agency.

Individuals who bring cases under federal environmental laws can often collect their attorneys’ fees, but the Proposition 65 provision awarding 25% of the fines to private citizens is unprecedented.

Plan Enforcement

State and local prosecutors said they are preparing to enforce the initiative starting Feb. 27. They expect to investigate some cases on their own and take over others that are filed by individuals. But because of a lack of resources, particularly in more rural areas, they plan to leave many lawsuits for citizens to pursue independently.

“A ‘private attorney general’ provision is a helpful and intelligent way of enforcing the law,” said Andrea Sheridan Ordin, chief assistant state attorney general. “There is a real hope that there is going to be a broad reaction from the citizens--those who are closest to the problem and have the information.”

By shifting the burden of proof onto businesses, Proposition 65 will also make it easier for prosecutors and citizens to win toxic chemical cases once they reach court.

No longer will the government or an individual have to demonstrate that a product or a chemical exposure is hazardous. Instead, the businesses accused of violating Proposition 65 will have to prove that the chemicals they used are safe.

And unlike traditional toxic lawsuits in which victims must prove that they have been harmed by a chemical exposure, individuals who bring Proposition 65 cases will not have to show that they have suffered any injury.

Tip Hand on Strategy

At the Los Angeles conference, environmental attorneys tipped their hand on their strategy in pursuing Proposition 65 cases. Roe, the Environmental Defense Fund lawyer, recommended that attorneys give high priority to cases where:

- The chemical exposure is most serious--either where the level of exposure is especially high or where a large number of people have been exposed.

- Corporations do not make good-faith efforts to comply with the law by finding out ahead of time how they are exposing the public to dangerous chemicals.

- Businesses do not change their practices after receiving a 60-day notice of intention to file suit.

- Companies intentionally use inadequate warnings, including warnings that are vague or that require consumers to call in to receive information.

Business leaders take some comfort from the environmentalists’ plan not to target companies doing their best to comply with Proposition 65. But they are still concerned that some people will use the initiative simply as a way to make money.

Fears of Businesses

“There’s a way of making a profit by bringing these suits,” said Michele Corash, attorney for a business coalition that calls itself the Environmental Working Group. “The fear of the business community is that people will select cases not on the basis of where the public interest is greatest but on where the potential for collecting penalties is greatest.”

In addition to the prospect of winning substantial fines, anyone who brings a case can also seek an injunction to put an immediate stop to a chemical exposure.