On Lead Poisoning Looking beneath surface of odd ballot measure

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t’s fitting that the “Healthy Homes and Schools Act” was devised by paint companies. The proposed ballot measure brushes an appealing coat of housing and environmental policy over a cynical attempt to dodge corporate responsibility.

Having fought and repeatedly lost an epic legal battle with local governments in the Bay Area and beyond over the depredations of toxic lead paint, the implicated companies are poised to ask voters to overturn their huge liability and replace it with billions of dollars in taxpayer-financed borrowing. Disingenuously cast as a response to the housing shortage, the measure would join a crowded November ballot already expected to feature more serious proposals to fund affordable housing and expand rent control.

Special interests brandishing ballot measures sometimes hope to wring a sympathetic response from the Legislature. That hasn’t happened in this case. To the contrary, led by Assemblyman David Chiu, D-San Francisco, who has called the threatened ballot measure a “scam,” lawmakers have responded with a series of bills backing up the court rulings. The most consequential of them, by Assemblywoman Monique Limón, D-Santa Barbara, passed by a single vote in the face of intense industry lobbying.

The manufacturers, which must decide whether to proceed with the initiative by the end of the month, say they prefer comprehensive legislation on the paint question. That makes sense, but their attempt to make it so through ballot measure blackmail is regrettable. Lead was widely used in paint and remains common in housing predating a federal ban in 1978. Lead paint becomes hazardous when wear and inadequate maintenance produce lead-laden dust, the ingestion of which is the chief cause of childhood lead poisoning. While the metal’s dangers have been known for centuries, experts have become increasingly alarmed by the irreversible neurological and other harms of even small amounts, especially for developing children, to the point that the federal Centers for Disease Control and Prevention declared in 2012 that there is no safe blood lead level.

Santa Clara County sued former lead paint manufacturers in 2000 on the grounds that they promoted the product despite its perils; it was joined by nine other

local governments, including San Francisco, Oakland, and San Mateo and Alameda counties. Fourteen years later, a Santa Clara County Superior Court judge ruled that Sherwin-Williams, Conagra and NL Industries had created a public nuisance — a landmark legal finding with repercussions well beyond the case — and held them liable for more than $1 billion to find and fix lead hazards. A state appellate court upheld the judgment last year but limited it to homes built before 1951, the period when the evidence showed the companies pushed poisonous paint. The state Supreme Court declined to hear the case in February, letting the ruling stand, but two of the companies are preparing an appeal to the U.S. Supreme Court.

With most of their legal options exhausted, the companies began exploring political ones, putting up $6 million to gather signatures for the ballot measure. If passed, it would reverse the court rulings by declaring lead paint “not a public nuisance.” It would also raise $2 billion in public funds for remediation of a broad range of hazards in housing and schools, including not just lead but also asbestos, radon, mold and “pests.”

The companies argue that letting the court rulings stand would unfairly expose responsible homeowners and ignore whole swaths of the housing stock that were excluded from the case. Such flaws could be addressed by further suits, which may be what the manufacturers fear. Their more persuasive argument is that negligent landlords and local governments bear some responsibility for the substandard housing conditions that usually facilitate lead poisoning, which disproportionately affects poor and minority neighborhoods. That doesn’t, however, absolve the original sin of covering the earth, to paraphrase one paint slogan, with a toxin.

Lawmakers should be ready to compromise on the shape and cost of lead abatement, but not on basic responsibility for it. They and the voters should resist any attempt to overturn the courts’ careful judgment or force victims of corporate misconduct to pay for it.