The case before the Supreme Court this month that is dividing progressives

The U.S. Supreme Court is planning to decide this month whether it will hear a case that has started a seismic shift in how local governments look to fund their efforts to address pollution and other public health risks. This case, which deals with removing lead paint from homes, may not dominate national headlines the way nominations do, but it has been the source of intense debate in the legal and business communities for nearly two decades.  In short, can local governments make businesses pay for the clean-up of downstream hazards associated with their products even when the companies did not cause the harms?

This case, submitted to the Supreme Court by Sherwin Williams and ConAgra, as well as others like it, are challenging for progressives. On one hand, the allure for environmentalists and social activists of dealing with a hazard without relying on government appropriations is understandable. But, subjecting someone to liability without fault or causation – which do not exist in these cases – violates the core progressive legal philosophy of standing up for one’s constitutional rights. To be clear, companies in these cases lawfully made and sold non-defective products. The lawsuits are solely over downstream hazards that often occurred years after the products were sold. {mosads}

The strategy to create such a government “super tort” was hatched in the 1990s, often through the aid and encouragement of private contingency fee lawyers. They targeted manufacturers of products, like guns and lead paint, which were “unpopular” or could be used, misused, disposed of, or allowed to deteriorate in ways that could create harm. The governments sought to take advantage of the belief that “the participation of states and cities in a lawsuit brings credibility and a ‘moral authority’ to the cause.” I have written extensively on this trend, including filing friend-of-the-court briefs on behalf of trade associations in this case and others like it.

These cases have been widely rejected, leaving the lead paint case before the Supreme Court as the leader in this deep pocket jurisprudence trend. The facts here are largely uncontroverted.  Before the 1950s, lead was in interior paints because of its benefits; it was washable, facilitated sanitation and stopped the spread of disease. There were hundreds of companies in the lead paint industry, and some governments specified its use. The risks to children of flaking and peeling lead paint chips became better understood in the 1940s and 1950s, when the companies, together with the medical community and government, took steps to remove lead from household paint.  Evolving scientific and societal knowledge and tolerance for risks are common to many products.

Nevertheless, in 2000 — a half century later — some California counties sued the few companies still in business from the old lead paint industry to force them to fund the removal of the old paint house-by-house. The counties argued that the companies should have to remove the lead paint from each of house, even if it did not make or sell the paint in that home. The cost of such an endeavor would be well over a billion dollars in these counties alone. The local courts approved the litigation, with the trial court admitting that it believed the ends justifies the means, stating, “shouldn’t we take advantage of this more contemporary knowledge to protect thousands of lives?”

The answer to the trial court’s rhetorical question has been “no” in nearly every other place this litigation has been tried, including Rhode Island, New Jersey and Illinois. These progressive states recognized that if local governments could target businesses in these ways, any company could be subject to unlimited liability regardless of its degree of culpability. The New Jersey Supreme Court explained that a company cannot be liable for “merely offering an everyday household product for sale.” And, the Rhode Island Supreme Court said that such liability violates “basic fairness.” The progressive legal philosophy does not support unprincipled liability.

The success of the California lead paint case so far has already spawned a new wave of lawsuits to make businesses pay for other environmental and social issues regardless of fault. For example, governments in California, New York, and other states are suing fossil fuel producers over lawful sales and promotions of oil, gas and coal. They want to make energy companies pay for seawalls and other infrastructure projects to abate impacts of climate change. Regardless of how badly one may want to fight climate change, these lawsuits are baseless. As Justice Ginsburg wrote for a unanimous Supreme Court when it heard a similar climate change suit several years ago, Congress and EPA, not courts, are the appropriate branches of government for dealing with climate change.

In addition, West Coast cities from Seattle to San Diego have started invoking the California lead paint case in suing a former part supplier of PCBs to clean up PCBs from local waterways.  The part supplier did not cause the contamination. It sold PCBs to other companies for use in paint, transformers and other products as a fire retardant. Accordingly, it did not control the final products, where they were sold, or how they were disposed. But, rather than identify and go after the actual wrongdoers, the cities are trying to take the one-stop shortcut of suing the supplier.

There is nothing unique about these products. All products have risks. The responsibility for a manufacturer is to make sure a product is not defective — not to be the insurer of last resort. Otherwise, bottle manufacturers would be responsible for litter and sugar producers for cavities.  All eyes are on the Supreme Court to see if it will grant the Petitions filed by Sherwin Williams and ConAgra. One thing is for sure, progressives in local governments should be more judicious when wielding the mighty power of government-sponsored litigation.

Phil Goldberg is the director of the Progressive Policy Institute’s Center for Civil Justice and managing partner of the Washington, D.C. Office of Shook Hardy & Bacon.