Shortly after getting thrown for a loss by a California appeals court, three paint companies launched an attempted end run around a judgment that could cost them hundreds of millions of dollars: They filed an initiative for the November ballot that would nullify the judgment and invalidate the legal theory on which it was based.
As we reported earlier this month, however, they concealed that intention within a touchy-feely text that made the initiative look like a $2-billion bond issue to clean up the environmental degradation of old homes and schools. They called their initiative “The Healthy Homes and Schools Act of 2018.”
California Atty. Gen. Xavier Becerra has just blown the whistle on this underhanded stunt. On Friday, he issued his own title and summary for the proposed initiative, as is his statutory duty. His version of the title leads with the words, “Eliminates certain liability for lead-paint manufacturers.” Becerra’s title is subject to a court appeal. But if it stands, it will be hard for the paint companies to hide the true purpose of their Trojan Horse ballot measure.
We’ve explained that the ballot campaign stems from a lawsuit brought in 2000 by 10 California cities and counties against the manufacturers of lead paint. The industry promoted this product for decades for residential use, citing its durability. As homes aged, however, the paint deteriorated into chips and dust that could be ingested by children, causing lead poisoning.
In 2014, a state judge ordered three former manufacturers of lead paint — Conagra, NL Industries and Sherwin-Williams — to spend $1.15 billion to abate the dangers from that paint still lurking in California homes. In November, a three-judge panel of the state Court of Appeal upheld that judgment, though it cut the firms' exposure to an estimated $600 million.
The rulings were based on the theory that the residual paint constituted a "public nuisance" for which the companies were responsible.The proposed initiative takes direct aim at the lawsuit. Its text states that “lead-based paint on or in private or public residential properties...is not a public nuisance.” And it states that it will apply to all cases pending, including pending on appeal, on or after Nov. 1, 2017. The paint companies have appealed the November ruling to the California Supreme Court, so the initiative would apply.
There’s nothing new about corporate interests exploiting the ballot initiative process for their own ends, though it’s seldom as transparent as this case. The three paint companies already have contributed $2 million each to a signature-gathering effort on behalf of the initiative; it’s a safe bet that if the measure reaches the ballot, they’ll spend a lot more on television commercials to get it passed. Becerra’s title would go far to ensure that their money would go to waste.