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When Should the Polluter Pay for Pollution That Was Legal at the Time?

In a landmark lead paint liability case, the Superior Court of California has held three of five paint companies liable for public nuisance. The court ordered them to clean up lead paint in California residences painted before 1978, at a total cost of $1.15 billion. The use of lead in interior residential paint was permitted until after 1978, i.e. the manufacture and sale of lead paint was legal when these homes were painted. See People v. Atlantic Richfield Company, et al. Superior Court of California, County of Santa Clara, Case No. 1-00-CV-788657

Could this happen in Canada? It is possible.

California laws are more favourable to this type of decision than Canadian laws are. First, public nuisance is easier to prove in California. In California, public nuisance means anything injurious to health, which is indecent or offensive to the sense, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life and property. It is also defined as something which affects an entire community or neighbourhood, or any considerable number of persons, though the extent of damage upon inflicted individuals may be unequal. The California courts require that the interference be both substantial and unreasonable.

In this case, the court concluded that lead paint in older homes is a public nuisance today, because it still poses a serious health risk to thousands of children in tens of thousands of homes. Lead paint causes significant physical harm to individuals which has lasting effects, including diminished intellectual capacity. The most recent official report in January 2012 was from the Advisory Committee on Childhood Lead Poisoning Prevention of the Center for Disease Control (“CDC”). The report concludes that there is no safe level of exposure to lead for children.

Lead paint is likely also a significant threat to children’s health in Canada. But public nuisance is rarely proved successfully here. In its simplest terms, it must be a nuisance which affects “the public”, not merely one or more individuals. At the same time, no one can recover money for public nuisance unless they have suffered some “special damage” different from the impact on the general public. It is difficult to prove both a “nuisance” to “the public”, and “special damage” to individuals. Section 103 of the Ontario Environmental Bill of Rights eliminates the “special damage” requirement for claims in public nuisance causing environmental harm. Still, no one has ever successfully proven public nuisance under this section.

Second, it is always controversial to apply today’s laws to yesterday’s conduct, (though environmental administrative orders often can). In California, it helps that its Civil Code states “no lapse of time can legalize a public nuisance, amounting to an actual obstruction of a public right”.[1]

But the real key to liability is the foreseeability of harm. (Foreseeability is increasingly a necessary element of liability for a Canadian environmental tort; this is certainly the case for negligence (Berendsen).)

The California court ruled that the paint companies knew that what they were selling was harmful to children. In fact, the court concluded, everyone in the industry knew that lead paint was dangerous. Paint without lead was equally as useful as paint with it, and without the hazards, and alternatives to lead were available by the early 1900s. Yet some chose to produce, market and sell the product anyway.

In fact, Judge Kleinberg ruled that three of the paint companies did much more than merely manufacture a legal, if risky, product. They actively promoted the use of lead paint for interior use, knowing it was hazardous to children, much in the same way tobacco companies promoted smoking. This is the distinguishing, “far more egregious” factor that justifies retrospective cleanup liability, unlike a conventional product liability case.

Two of the paint companies were excused from liability. DuPont specifically did not produce lead pigment containing paints for interior use. Instead, it produced and marketed lead-free paints, specifically advertising their products as containing “non-poisonous pigments.” Another defendant was also excused, on the basis that it only promoted lead paint for two years, and only to the trade, not the general public.

Thus, for these three companies, they can be required to remove the lead from the affected homes today, despite the fact that selling lead paint was legal at the time. And this is likely just as true in Canada as it was in California.

 

We note it is unlikely that liability will automatically flow for products that later turn out to be unexpectedly dangerous. For example, for some time the use of pesticides such as DDT were simply not understood by the industry or government as being dangerous. Numerous videos available on YouTube promoting the use of DDT are shocking by today’s standards,[2] but at the time, were genuinely considered appropriate. And DDT had at least perceived utility, unlike lead in paint.

This case took 13 years to wind its way through the courts, and was hotly contested by industry. There were 23 trial days, over 450 exhibits over 30 written objections and motions. The decision is now bound to be appealed. Watch this space.


[1] s. 3490. Also, the court noted that the nuisance was ongoing, so the People did not unreasonably delay in bringing the action and there was no prejudice to the defendants: a greater prejudice, resulting from lost evidence, resulted to the People than the Defendants in this case.

[2] See for example http://www.youtube.com/watch?v=gtcXXbuR244, where an entomologist in 1947 attempts to prove the safety of DDT to Kenyans by eating it in his porridge. It seems that the disbelieving Kenyan residents had it right.

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