You might be asked any day to sign a petition supporting a proposed California ballot initiative called the Healthy Homes and Schools Act — and who doesn’t like the idea of healthy homes and schools?
What the person gathering signatures won’t tell you is that the deceptively titled Healthy Homes and Schools Act is in fact a super-sneaky attempt by major paint companies to avoid paying hundreds of millions of dollars in remediation for selling people products with toxic levels of lead.
What the signature gatherer won’t say is that the paint companies would rather stick you with the tab instead.
“This initiative should be called the Let Us Get Off The Hook And You Pay Millions Of Dollars For Our Mistake Act,” said Assemblywoman Wendy Carrillo (D-Los Angeles).
She’s one of half a dozen state lawmakers who introduced bills last week to counter the paint companies’ duplicitous ballot drive and make sure they’re accountable for the mess they created or inherited through acquisitions.
“The companies knew their paint had lead in it and they sold it anyway,” Carrillo said. “They’re putting profits over people.”
To understand this story, you have to go back nearly two decades to when Los Angeles County and nine other California jurisdictions sued companies that at one time made lead-based paints. That led to 13 years of litigation.
In 2014, the jurisdictions won a $1.15-billion judgment from the Santa Clara County Superior Court, which ruled that the companies marketed lead paint as a safe product even though they knew it was poisonous, especially to kids.
Lead paint has been banned for residential use since 1978, but it can still be found in millions of homes, particularly in lower-income communities.
The paint companies, facing more than $1 billion in payouts to remove lead paint from California homes, wasted no time in appealing the 2014 decision.
In November, the state’s 6th District Court of Appeal tweaked the lower-court ruling to say that the judgment applies only to homes built prior to 1951, when the companies stopped advertising lead paint. That means a smaller payout for the manufacturers but still probably hundreds of millions of dollars.
The California Supreme Court last month declined a request by the paint companies to take up the matter.
So the firms came up with a new plan: leave taxpayers holding the bag.
The companies — Sherwin-Williams, Conagra and NL Industries, none of which are based in California — hired a bunch of local lobbyists and ponied up $2 million apiece to concoct the Healthy Homes and Schools Act, which they hope to qualify for the November ballot.
If passed, it would get them off the hook for the lawsuit’s hefty remediation by having the state issue $2 billion in bonds to cover a more comprehensive cleanup that would include mold, asbestos and other issues, along with toxic paint.
The initiative is dressed up in all sorts of sympathetic causes, such as concern about affordable housing and a shortage of rental properties.
It makes the case that “any response to California's housing crisis must be to rehabilitate existing homes that are either uninhabitable or pose potential health risks to their residents due to structural or environmental hazards.”
The solution, it says, is for the state to borrow $2 billion for a far-reaching overhaul of the housing market, including “remediation of structural and environmental hazards which includes, but is not limited to mold, asbestos, radon, water, pests, ventilation and lead hazards.”
And then this inoccuous-seeming provision: “Lead-based paint on or in private or public residential properties, whether considered individually, collectively or in the aggregate, is not a public nuisance.”
That one line is the ballot initiative’s entire reason for being.
Under California law, “anything which is injurious to health ... so as to interfere with the comfortable enjoyment of life or property ... is a nuisance.”
The law says it’s a crime if anyone “maintains or commits any public nuisance” or “willfully omits to perform any legal duty relating to the removal of a public nuisance.”
The California jurisdictions that brought the lawsuit based their entire case on this premise, and the courts agreed. An illegal public nuisance was created and perpetuated by the paint companies.
The Healthy Homes and Schools Act says this wasn’t really the case, all evidence to the contrary notwithstanding.
It also says any lawsuit “pending on appeal on, or filed after, Nov. 1, 2017” becomes null and void, which basically throws the two costly court decisions out the window. Kind of like how Marty McFly could change the present by altering the past.
Kendall Klingler, a hired PR gun serving as spokeswoman for the ballot initiative, acknowledged to me that the Healthy Homes and Schools Act is a direct response to the court rulings. But she insisted that the initiative is actually a good thing for Californians.
“The rulings created a huge burden for homeowners,” Klingler said. “It labeled millions of homes public nuisances, which can cause a loss of property value.”
Not so, countered the California Assn. of Realtors.
“We don’t think that’s the case at all,” said June Barlow, the organization’s general counsel. She said the state already requires disclosure of lead paint during home sales, so the risk has been reflected in property values for years.
Barlow also said a close reading of November’s court decision indicates that lead paint in general is being labeled a public nuisance, not the presence of lead paint in individual homes.
Any house or apartment building built before 1978 is likely to contain lead paint, unless it’s been subsequently removed. According to the federal Centers for Disease Control and Prevention, about 24 million poorly maintained housing units nationwide pose a danger of lead paint exposure.
“Even low levels of lead in blood have been shown to affect IQ, ability to pay attention and academic achievement,” the CDC says. “And effects of lead exposure cannot be corrected.”
Some California neighborhoods, including downtown L.A., have been found to have rates of childhood lead poisoning surpassing those of Flint, Mich., where the local water supply was determined in 2015 to have been contaminated with lead and other toxins.
Carrillo, the assemblywoman, had it right when she told me “the paint companies just want taxpayers to pay for their mess.”
Insult to injury: The state Legislative Analyst’s Office figures that if we borrowed $2 billion, like the paint companies want us to, it would cost California taxpayers nearly $4 billion to pay back the principal and interest over the 35-year length of the bonds.