California voters are poised to consider who should be responsible for cleaning up lead paint in homes after an initiative sponsored by two national paint companies qualified Tuesday for the Nov. 6 ballot.
If approved, the initiative would invalidate a recent state appeals court ruling that put the paint companies — Sherwin-Williams and ConAgra — on the hook for potentially hundreds of millions of dollars to remove lead from homes. Instead, the measure authorizes a $2-billion, taxpayer-financed loan to pay for the cleanup.
Although the companies continue to negotiate with state legislators for relief from the court ruling ahead of Thursday’s deadline to withdraw the initiative, the chances of a deal seem slim. Public health advocates and lawmakers have sharply criticized the companies and redoubled their condemnation Tuesday.
“Companies found guilty of knowingly exposing kids to lead shouldn’t count on voters letting them off the hook,” Assembly Speaker Anthony Rendon (D-Paramount) said in a statement. “Instead of this cynical ploy, the paint companies should pay the fines the court ordered and then start working to remediate lead in homes not impacted by the court case.”
The companies’ gambit to blunt an unfavorable legal decision and shift their financial burden to taxpayers through an initiative could be the first of its kind in California, political observers have said. The companies collected more than the 365,880 signatures needed to qualify the measure, Secretary of State Alex Padilla said Tuesday.
The fight over the responsibility for cleaning up lead paint stretches back to 2000 when Los Angeles and nine other California cities and counties sued the companies. Local governments argued that the companies promoted the use of lead paint with the knowledge that it had negative health effects, especially in children. Lead paint became illegal to use in homes in 1978.
The case wound its way through the courts until November 2017, when a state appeals decision mostly affirmed a lower-court ruling that found the companies responsible for cleaning up homes built before 1951 in affected cities. The state Supreme Court declined to hear the case, allowing the lower-court ruling to stand, and the companies hope the U.S. Supreme Court will take it on.
Shortly after the November appeals court decision, the companies filed their proposed ballot measure. They have since poured $8 million into the campaign. A quarter of that funding came from a third company, NL Industries, which settled its part of the court case in May for $60 million and a pledge to stop supporting the measure.
The initiative would provide significantly more money to remove lead paint, finance the removal of mold and other health hazards from homes and schools, and provide relief across the state rather than to just the 10 areas that sued, the campaign has said.
The measure, campaign spokeswoman Tiffany Moffatt has said, is “a holistic and comprehensive approach to cleaning up existing homes in California by creating a statewide solution to address a variety of hazards in homes, such as mold, lead, asbestos, pests and other threats.”
The companies also will face a new legal challenge. On Tuesday, two of the counties involved in the litigation over lead paint in homes filed a lawsuit to get the initiative taken off the ballot. Attorneys with Santa Clara and San Francisco counties are asking the California Supreme Court to remove the measure, arguing that the effort violates constitutional prohibitions against initiatives that address more than one subject.
“Having won a landmark judgment against them in court, we will not allow [the paint companies] to undermine the judicial process through this unconstitutional abuse of the initiative system,” Santa Clara County Counsel James R. Williams said in a statement.
Despite the initiative’s official certification, both the paint companies and some lawmakers have said they’d prefer legislation over a fight in the November election. Under state rules, proponents have until Thursday to withdraw their initiatives.
The companies have also lamented that the November court decision labeled lead paint in homes a “public nuisance.” They have argued that that designation also increases liability for individual homeowners to clean up lead paint, a point vigorously disputed by attorneys for local governments. Instead, city and county lawyers have said the public nuisance declaration could allow other municipalities across the state to sue the companies for further damages.
Negotiations heated up as Thursday’s deadline approached. On Monday, the companies released a proposed bill that would overturn the court ruling, require paint manufacturers to pay $500 million for lead cleanup over the next decade and shield the companies from liability. They said Assemblyman Tim Grayson (D-Concord) would write that legislation.
But Grayson responded that he wasn’t going to introduce the bill the companies had proposed. He is still hoping for a deal, but any successful legislation would require the companies to pay a lot more, he said.
“A statewide solution for lead paint remediation is simply not going to happen with the dollar amounts that the lead paint industry has proposed,” Grayson said.
No lawmaker has introduced a bill that would address the companies’ concerns and result in the measure’s withdrawal from the ballot. Any such bill that would increase fees for the paint companies would require a two-thirds supermajority vote of the Legislature. Legislative rules also require bills to be in print for 72 hours before lawmakers can give them final approval. This means the companies would have to agree to abandon the ballot measure before a bill could be formally passed.
Kendall Klingler, another spokeswoman for the paint companies’ campaign, said in a statement that the companies were still seeking a deal. Their proposed legislation released Monday, she said, “would establish a responsible and long-term state remediation program — funded by paint companies — to clean up lead paint in homes throughout California.”
“One way or another, we are committed to supporting a solution that works,” Klingler said.
In March, legislators introduced a host of bills aimed at further penalizing the companies. Among the surviving measures is one that would add a $2-per-gallon fee on all paint sold in California by any paint company, which would go into effect if the November initiative passes.