State High Court Backs Prop. 65

In its first examination of Proposition 65, the 1986 anti-toxics initiative, the California Supreme Court ruled Monday that the state may prohibit the discharge of lead and other toxic chemicals into faucet water.

Giving a victory to environmentalists who inspired the measure, the court said it should be broadly interpreted to protect public health, a ruling that will make it more difficult for companies to circumvent the wide-ranging law.

The court’s 5-2 decision stemmed from lawsuits against faucet manufacturers who charged that the proposition did not apply to lead in their products. Lead is a poison that impairs intellectual ability in children.

The state settled its litigation with faucet makers, who agreed to provide warnings and gradually reduce lead in products. But the court’s decision will also apply to other companies that use lead in manufacturing various plumbing components and to a small percentage of faucet makers that were not involved in the lawsuits.

The dispute before the court arose over wording in the initiative that prohibited hazardous substances in “any source of drinking water.” Plumbing manufacturers argued that faucets were not a source of drinking water and insisted that the proposition was aimed at reservoirs and other water storage systems.

But Justice Stanley Mosk, writing for the majority, noted that the initiative was primarily aimed at making drinking water safe. It banned all toxic discharges that would contaminate drinking water, he said.

“We must conclude that the electorate did not intend a breach in that protective zone by exempting discharges of lead into faucet water--where toxic contamination of drinking water is certain to occur--absent an express exclusion,” Mosk wrote.

Deputy Atty. Gen. Edward G. Weil said the state will continue to investigate other sources of lead in plumbing and to bring manufacturers into compliance with the law. “It is what people voted for,” said Weil, who presented the state’s arguments to the court.

A Court of Appeal that previously examined the case held that the law was penal in nature because it allows the state to fine offenders. Any ambiguity in a penal law must be resolved in favor of the defendants, the court said.

But Mosk said there was no reason to construe the statute so strictly. “We consider Proposition 65 to be a remedial statute intended to protect the public from, among other things, toxic contamination of its drinking water,” Mosk wrote.

That portion of the ruling will affect other Proposition 65 disputes and potentially even other consumer and environmental laws by removing any assumption that the defendant should be given the benefit of the doubt when wording is ambiguous and fines are at stake, several lawyers said.

“The burden is where it belongs--on the polluter, not the public,” said Al Meyerhoff, senior attorney for the Natural Resources Defense Council.

James L. Meeder, an attorney for one of the faucet manufacturers, agreed that the ruling could have ramifications far beyond drinking water faucets. He complained that defendants should not be subject to fines if the rules are unclear.

“It is so fundamentally unfair and so fundamentally wrong that it makes you question the thinking of the court and whether there is not some better way to structure our laws,” the San Francisco lawyer said.

In a dissent, Justices Marvin Baxter and Ming Chin argued that the law was designed to prevent businesses from intentionally contaminating the state’s surface and underground drinking water supplies, not to affect plumbing installed in private homes.

“In my view,” Baxter wrote, “neither the ordinary, common-sense meaning of the words of Proposition 65, nor available extrinsic aids to its interpretation, suggest any application to lead in water faucets.”

But environmentalists were elated. David Roe, a senior attorney with the Environmental Defense Fund, said the ruling “certainly strengthens an already strong law.”

“The protection of drinking water is now firmly established all the way to the tap, which is probably further than a lot of observers thought,” said Roe, who helped write Proposition 65.

Meyerhoff called the decision a “smashing victory” not only for drinking water safety but for other consumer laws. “We’re extremely pleased with the outcome today,” Meyerhoff said.