By Michael Green

Summary: Last month, an article by a San Francisco attorney appeared in this magazine that discussed California’s Proposition 65, or Prop. 65. That article shared one view on the citizen-suit provision of Prop. 65, also known as the Safe Drinking Water and Toxic Enforcement Act of 1986. This article will share a different perspective.


Thomas M. Clarke writes in the May issue of WC&P that “so-called public interest groups…[are often] nothing more than a crude front or ‘beard’ for the attorney.” As director of the Center for Environmental Health, I am one of the allegedly “crude fronts” or “beards” that Mr. Clarke referred to in his article.

For the record, I have a bachelor’s degree in conservation and resource studies from the University of California at Berkeley. I also have a master’s degree in natural resources and a master’s degree in public policy, both from the University of Michigan. I’ve worked at the U.S. Environmental Protection Agency (USEPA), U.S. Department of Energy (Office of Environmental Management) and for Mother Teresa in Calcutta. I’ve also designed a solid waste management plan for a Tibetan refugee community in northern India. Although not an attorney, I serve on the board of the International Committee of Lawyers for Tibet and also serve on the advisory councils of both Clean Water Action-California and Thimmakka’s Resources for Environmental Education. Many of the other “fronts for attorneys” that Mr. Clarke refers to in his article have similar backgrounds.

A popular mandate
Prop. 65 was passed by California voters by a nearly 2-to-1 margin. It reads (in part): “The people of California find that hazardous chemicals pose a serious potential threat to their health and well-being, [and] that state government agencies have failed to provide them with adequate protection… The people therefore declare their rights:

(a) To protect themselves and the water they drink against chemicals that cause cancer, birth defects, or other reproductive harm.

(b) To be informed about exposures to chemicals that cause cancer, birth defects, or other reproductive harm.

(c) To secure strict enforcement of the laws controlling hazardous chemicals and deter actions that threaten public health and safety.

(d) To shift the cost of hazardous waste cleanups more onto offenders and less onto law-abiding taxpayers.”

‘Citizen enforcer’ clause
Prop. 65 was passed, in part, because of its strong citizen-suit provision. This citizen-suit provision states that, under certain conditions, public interest groups may enforce the law if the government does not. These conditions include a requirement that the public interest group notify 63 public enforcers throughout the state (including the California Attorney General) about any allegation of violation of Prop. 65. If no public enforcer takes any action for 60 days after that notification, the public interest group has legal standing to act in the public interest as a “citizen enforcer.”

I believe there have been some isolated abuses by private enforcers of Prop. 65. However, these abuses have been far outweighed by the massive public benefit resulting from private enforcement. Most Prop. 65 litigation—even litigation brought by the California Attorney General—was originally brought to the surface by an environmental group attempting to enforce Prop. 65.

A weighty subject
Most readers of WC&P are aware of the health hazards posed by lead. Many of you are in the business of selling products designed to protect the public from lead. For that reason, I’ll focus on lead in the remainder of this article.

Elevated blood lead levels can cause birth defects, learning disabilities, decreased intelligence, behavioral problems, delayed physical growth and memory/concentration difficulties. According to the USEPA, nearly one million U.S. children under six have elevated blood lead levels (over 10 micrograms per deciliter, or µg/dL). Of those children, how many won’t do as well in school because of elevated blood lead levels? The cost of this lead to society is immeasurable.

Because the effect of lead is cumulative, there’s no safe additional lead exposure for these children. In fact, the U.S. Agency for Toxic Substances and Disease Registry (ATSDR) says that no safe level of lead has been found for children.

The proposition and lead
Private enforcement of Prop. 65 has reduced lead exposures to millions of Americans. It has done this by creating market incentives for companies to reformulate their lead-containing consumer products and reduce their emissions of lead into air and water.

For every Prop. 65 suit that has been brought, many other companies have certainly avoided liability by reducing their use of toxic chemicals without having ever been sued. While no one knows how many companies have preemptively changed their practices in order to avoid liability under Prop. 65, the list of industries that reduced their use of toxic chemicals after they received notices of violation under Prop. 65 is long. Some examples include:

Faucet manufacturers
Nearly 50 million faucets are sold in the United States each year. In 1992, two national environmental groups, and the California Attorney General’s Office, sued 14 major faucet manufacturers. At that time, most faucets weren’t compliant with Prop. 65. The industry immediately set new voluntary standards. Today, 95 percent of faucets sold in California, and most sold in the United States, comply with the agreement signed by the attorney general. These companies reduced lead leaching from their faucets through changes in the manufacturing process, including reducing the lead content, changing the casting methods, and using a chemical wash before the faucets left the plant.

Submersible well pumps
Thirteen percent of homes use well water. Most of those wells have underwater pumps: 450,000 are sold each year. In 1994, one firm made these pumps out of stainless steel, while the others—when new—leached several hundred parts per billion (ppb) of lead. The California Attorney General praised the manufacturer using stainless steel when he sued the other manufacturers. At the time, a USEPA representative was quoted in the Los Angeles Times as saying: “This is the first time that anyone has looked at this problem.” Today, the industry is in compliance and lead exposures from submersible pumps are insignificant.

Ceramic China
Almost 1.2 billion pieces of ceramic china are sold each year. Lead is used in some glazes because it provides a brilliant color and is easy to work with. The problem is that the lead leaches into spicy and hot foods. In 1979, the USEPA set a voluntary standard for lead in china. In 1991, the California Attorney General and Environmental Defense Fund (EDF) sued 10 major manufacturers of leaded china. According to EDF, 650 product lines complied with Prop. 65 before these suits were brought, and 8,000 lines comply today. Those that leach lead above the Prop. 65 levels today are required to be sold with very visible bright yellow warnings. Many firms that were never sued changed their practices. This demonstrates the technology-changing power of Prop. 65.

Calcium supplements
Calcium is good for bones and prevents osteoporosis. It’s routinely recommended for pregnant and lactating women. But the sources of calcium are routinely contaminated with lead. In 1997, the California Attorney General and environmental groups sued the 10 largest producers of calcium supplements. The entire industry quickly reformulated their product and reduced the lead content greatly.

Wine bottles
Until a Prop. 65 suit was brought, most wine bottles had a foil wrapper that was 95-to-97 percent lead. This lead was passed into wine when it was poured. Today, there’s rarely any lead in wine wrappers.

Hair dyes
Lead is one of the two active ingredients in gradual hair dyes, such as Grecian Formula, marketed for men ages 35-to-55. Because of a Prop. 65 suit, the lead exposures from these dyes was reduced drastically.

Water filtration systems
Many of these products, which are marketed to consumers for their ability to protect them from lead and other waterborne contaminants, were actually adding lead into water because they were sold with lead-containing faucets. In two cases, these systems were adding over 30 µg per day to consumers’ lead ingestion. Today, most water filtration systems available in the United States are sold with faucets that contain little if any lead.

Air emissions
In Oakland, Calif., American Brass and Iron was exposing 200,000 people to lead over the Prop. 65 levels. The exposed community was already at risk of high lead exposures because it’s a low income community where paint chips, and other environmental sources of lead and other toxics are concentrated. After a Prop. 65 suit was brought, this facility reduced their emissions by 80 percent.

A study conducted by EDF found that lead air emissions in California were reduced by 99 percent between 1988 (the year Prop. 65 came into enforcement) and 1996. In the same time, lead emissions nationally only went down 42 percent. The EDF study found a similar pattern for most chemicals covered under Prop. 65. For chemicals not covered by Prop. 65, the study found that there was little difference between California numbers and national numbers. This shows that Prop. 65 has made a big difference in protecting public health and the environment.

Conclusion
In summary, the California Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65) has made both California and the nation a place safer from toxic chemicals. Prop. 65 creates an incentive for corporations to reduce their use of toxic chemicals so they’re not required to provide a public health warning with their products. Because the majority of cases brought under Prop. 65 have been initiated by non-profit environmental groups, the citizen-suit provision of Prop. 65 is an important component in driving this market-based incentive for corporations to use fewer toxic chemicals.

References

  1. Freund, Michael, “Proposition 65 Enforcement: Reducing Lead Emissions in California,” Tulane Environmental Law Journal, Tulane University, New Orleans, La., Summer 1997, Volume 10, Issue 2.
  2. Rechtschaffen, Cliff, “How to Reduce Lead Exposures with One Simple Statute: The Experience of Proposition 65,” Environmental Law Reporter, October 1999, Volume 29, Number 10.

About the author
Michael Green is executive director of the Center for Environmental Health (CEH) of San Francisco. He can be reached at CEH, 528 61st St. Suite A, Oakland, CA 94609; (510) 594-9864 or email: mgreen@cehca.org

BREAKOUT:
Regulation by Litigation:
A Sign of the Times?

A very interesting article related to this subject appeared in newspapers around the country in February credited to Eric Peters, a syndicated columnist for Knight Ridder/Tribune Information Services.

The subject of the opinion piece was a column written for the Wall Street Journal by former U.S. Secretary of Labor Robert Reich, who left the Clinton Administration in 1997 to teach economics at Brandeis University, on the issue of a “growing anti-democratic influence of the legal system.”

Reich finds fault with the seeming policy of the Administration to promote lawsuits over legislation as a means of moving its political agenda forward, i.e., since legislative initiatives were frustrated by a Republican-led Congress, the courts were viewed as a primary option for affecting change. This is not assuming that lawsuits would be successful, but rather that the threat and/or costs of protracted litigation would sway corporations to concede to the Administration’s whims.

Reich calls it an “end run around the democratic process.”

With an already litigious society, this signal opens the floodgate on superfluous legal action bent not on achieving justice but influencing social norms. This is an abdication by elected officials of the responsibilities for which they were put into office whereby a small group of politicians, activist groups or corporations and their hired gun attorneys can control the agenda without electoral checks and balances. While the cause celebre may appear to be noble—breast implants and tobacco—the potential for abuse is enormous.

Peters writes: “Intimidation and blackmail via the court systems are becoming a normal part of life.”

Granted, there’s a role for attorneys such as those in the blockbuster movie “Erin Brockovich,” where a small California law firm was able to successfully represent the interests of a group of people whose health was compromised by hexavalent chromium dumping by PG&E. The Supreme Court reaffirmed this role only this January when it upheld the right of a citizen’s group, Friends of the Earth, to sue on behalf of the government to enforce the Clean Water Act over wastewater discharges from a hazardous waste incinerator into a South Carolina river in 1992.

And heaven knows that tight government budgets and competition with the private sector in a low unemployment era leave many regulatory agencies understaffed and overworked, but they should not abdicate their role in setting standards through scientific method and actively enforcing those through the proper legal channels.

Eric Somers, attorney representing the Center for Environmental Health, makes no bones about the fact that through his actions a defacto guideline has been set for allowable lead levels in drinking water well below federal standards through a series of settlements with faucet manufacturers and filter-faucet systems assemblers. He did this by pressing manufacturers and their customers not just to eliminate leaded brass faucets from their product lines in California but across the country. While he may feel this is laudable, again, it perverts the system.

“If that principle becomes enshrined in case law, it would be calamitous for the American economy—but a bonanza for the attorneys who will paw over the ruins,” writes Peters. And if we allow any agenda-driven person “to usurp the legislative function—then everyone from the kid on the street corner with a lemonade stand on up, will soon need a squad of high priced ‘legal’ help just to stay in business. That isn’t the American way.”

It is human nature to try and seek a shortcut. Like water, we seek the path of least resistance. However, we need to be careful we do not erode the foundation upon which our society is based.
—Carlos David Mogollón

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