SAN FRANCISCO (CBS SF) — Santa Clara County and the city of San Francisco have filed an emergency lawsuit asking the California Supreme Court to block a $2 billion initiative supported by two paint companies from appearing on the November ballot.
The lawsuit was filed with the high court in San Francisco on Tuesday, the day that Secretary of State Alex Padilla announced the measure had gathered enough signatures to qualify for the Nov. 6 ballot.
The initiative supported by Sherwin Williams Co. and Conagra Grocery Products Co. would provide a $2 billion taxpayer-paid state bond, requiring an additional $1.9 billion in interest, to finance the remediation of lead paint and other environmental hazards in houses and schools throughout the state.
It would also release the two companies from a court judgment requiring them to pay an estimated $409 million to $730 million for removing lead paint hazards in houses built before 1951 in Santa Clara County, San Francisco and eight other cities and counties.
The lawsuit claims the measure must be barred from the ballot because it concerns more than one subject, in violation of a state constitutional rule, and is misleading, in that it hides the elimination of the paint makers’ liability.
“The initiative attempts to trick the public into eliminating the manufacturers’ liability through a deceptive provision that does not even hint at the existence of the manufacturers’ liability and that is buried within a measure that bills itself exclusively as providing funding for remediation,” the lawsuit alleges.
The petition asks the high court to act by Aug. 13, the deadline for Padilla to send the state voter guide to the printer.
Lawsuits are not often filed directly in the state Supreme Court but the procedure is sometimes used for matters of statewide importance or urgency. The court has options of granting a hearing, sending the case to a lower court or denying the petition.
The dispute began with a public-nuisance lawsuit Santa Clara County filed in Superior Court in 2000 against Sherwin Williams, Conagra and NL Industries, formerly known as National Lead Co., seeking to have them pay for the abatement of lead paint in house interiors.
The lawsuit was later joined by Alameda, Los Angeles, Monterey, San Mateo, Solano and Ventura counties and the cities of San Francisco, Oakland and San Diego.
NL reached a $60 million settlement with the 10 counties and cities in May and dropped out of supporting the initiative.
Exposure to lead in deteriorated paint chips and dust can cause brain damage, learning disabilities, lowered IQ score and slowed growth in children. Lead-based paint was banned for residential use in 1978, but children in older homes remain at risk for exposure.
In 2014, Santa Clara County Superior Court Judge James Kleinberg concluded the companies had created a public nuisance by promoting lead-based paint while knowing that lead dust was harmful to children.
He ordered the paint firms to pay $1.15 billion to address the lead hazards in homes built before 1980 in the 10 cities and counties.
But late last year, a state appeals court narrowed the verdict to houses built before 1951, for which remediation is estimated at $409 to $730 million. The court said the liability should apply only to pre-1951 houses because there was no evidence the companies advertised the use of lead-based paint, as opposed to paint in general, after 1951.
The proposed initiative would end the liability by declaring that lead-based paint in residences is not a public nuisance under California law, and that the change in the law applies to any cases that were pending or on appeal as of Nov. 1, 2017.
Santa Clara County Counsel James Williams said in a statement, “The County of Santa Clara has fought for nearly 20 years to hold Sherwin-Williams and ConAgra accountable for the lead poisoning epidemic they’ve created in our communities.
“Having won a landmark judgment against them in court, we will not allow them to undermine the judicial process through this unconstitutional abuse of the initiative system,” Williams said.
The initiative was originally entitled the Healthy Homes and Schools Act, but state Attorney General Xavier Becerra changed the title to “Eliminates certain liability for lead paint manufacturers. Authorizes bonds to fund structural and environmental remediation projects.”