Painted into a legal corner

The message to the companies that coated the country with a toxic product couldn’t be clearer if it were written in bright white lead paint: Pay up. Three former lead paint manufacturers’ epic, nearly two-decade-old campaign to dodge legal responsibility ended Monday, when the U.S. Supreme Court declined to hear the case. A Santa Clara County judge’s ruling against the companies has now withstood not only three levels of appellate review but also a failed attempt to reverse it by lobbying the California Legislature and brandishing a disingenuous ballot measure.

The companies were found to have marketed lead-based paint for interior residential use despite its known dangers. They face hundreds of millions of dollars in liability to clean up hazardous lead paint in the old buildings that make up a substantial share of the housing stock in cities such as San Francisco and Oakland, which are among the local governments that eventually joined the lead plaintiff, Santa Clara County. This week’s decision should leave them no recourse but to come up with the money.

Not that their determination to escape the judgment should be underestimated. Earlier this year, with their legal options running out, the companies proposed an unprecedented ballot measure to overturn the court ruling and authorize billions of dollars in taxpayer-financed borrowing to clean up lead paint and a host of unrelated hazards.

The manufacturers ultimately withdrew the measure in June after being threatened with legislation that would have subjected them to additional sanctions. Two months later, in the final days of Sacramento’s legislative session, last-ditch lobbying nearly produced another proposal to soften the ruling before coming up short.

Lead was widely used in paint and remains common in housing predating a 1978 ban. Lead-based paint typically becomes dangerous when wear and tear produce lead dust, which can be easily ingested by children, whose developing brains are particularly vulnerable to the toxic metal.

Santa Clara County filed its lawsuit against former lead paint makers in 2000. Fourteen years later, a landmark ruling found that Sherwin-Williams, ConAgra and NL Industries had created a public nuisance and held them liable to find and fix lead hazards. A California appeals court upheld the judgment while restricting its scope and cost. The state Supreme Court declined to hear the case in February, leading to the appeal that the U.S. Supreme Court rejected.

The nation’s highest court turned down the case despite being joined last week by another conservative, Justice Brett Kavanaugh, and having received a number of friend-ofthe-court briefs from groups representing or sympathetic to business interests. In unsuccessfully urging the court to intervene, a ConAgra lawyer had argued that corporations that disingenuously touted other harmful products, from climate-changing fossil fuels to addictive opioid painkillers, could face serious repercussions as a result of the ruling — almost as if that were a bad thing.

Granted, manufacturers shouldn’t bear all the responsibility for lead paint hazards; it takes neglectful landlords and lax local government code enforcement for old paint to deteriorate to the extent that it becomes dangerous. Without the paint, however, there wouldn’t be any poison. The manufacturers have lost every argument to the contrary for obvious reasons.