Legislature Can Get the Lead Out

The right of citizens to propose laws by ballot initiative is one of California’s great checks and balances. Often viewed as a last resort to express the will of the voters (see: Proposition 13), it can also be incorporated into the legislative process.

At the end of June, the Legislature faced nine proposed initiatives that would likely qualify for a vote in November. In most years, lawmakers would simply wave at the measures on their way to the ballot. But this year, energized by a change in the timing for initiative sponsors to withdraw the measures prior to a vote, the Legislature engaged.

Sponsors of two measures removed them from the ballot after legislative passage and approval by the Governor of bills that substantially addressed concerns of the sponsors. A bill to add massive new regulations and litigation opportunities over internet privacy concerns was approved with the assurances that some of the most onerous rules and unintended consequences, similar to the withdrawn initiative proposal, would be revisited prior to the statute’s 2020 effective date. Sponsors withdrew a second measure upon approval of a bill establishing a moratorium on new excise taxes on grocery and beverage items.

Sponsors of a third initiative proposal also pulled the plug, relying on assurances from legislative leadership to work in good faith toward a policy solution. With the Legislature returning from its summer recess, the clock is running to make good on those assurances.

Earlier this year, a California appellate court found that three paint companies created a “public nuisance” by promoting the use of lead paint in the early part of the last century. The ruling placed huge liabilities on millions of Californians who own houses built before 1981, but because of the selection of plaintiffs and the limitations of the ruling, provided the possibility of remediation funding only to owners of homes built before 1951 and only in nine counties and one city.

In response, several paint companies secured the signatures necessary for a ballot measure to provide state funding to more equitably remediate a much larger number of at-risk homes, as well as preventing any future application of the nuisance doctrine in such an unconventional setting.

Since the measure was pulled, it is now up to the Legislature to fashion a statewide solution that remediates lead contamination in homes and removes the “public nuisance” stigma hanging over these homes.

The alternative is the solution crafted by the court, which would provide funds to just ten local governments and force any of the other 49 counties that might want remediation funding to pursue years of litigation with uncertain prospects.

The legislative leadership deserves credit for committing to address this difficult issue, and the initiative proponents made a leap of faith that lawmakers will follow up. A solution is within reach to provide immediate funding to create an effective remediation program under the oversight of state experts that ensures funds are available for the property owners who need them most.

Loren Kaye, President, California Foundation for Commerce and Education