Attorney General Curtis Hill is leading a multistate amicus brief contesting a California court’s ruling that stretches the bounds of public-nuisance law. The ruling holds three companies liable for costs associated with mitigating the dangers of all lead paint existing in all homes and buildings constructed since 1951 within 10 cities and counties in California.
Although California has not shown that the three companies are responsible for any of the lead paint throughout the region, the California Court of Appeal accepted arguments that because of the companies’ past involvement in the promotion of lead paint, the companies were sufficiently involved in creating a public nuisance to be held liable for removing all existing hazards – an undertaking estimated to cost many hundreds of millions of dollars. The three companies are Sherwin-Williams Co., ConAgra Grocery Products Co. and NL Industries Inc.
“Once again,†Attorney General Hill said, “we see here a form of judicial activism that spotlights a problem everyone would agree to be regrettable – in this case, lead-paint poisoning – and then recklessly uses such a premise to justify penalizing industry in an illogical manner.â€
Even when originating in other states, such practices could prompt higher prices for Hoosier consumers as companies are forced to cover costs imposed upon them by courts, Attorney General Hill said. Further, unjustified punitive actions against industry causes harm to companies that employ people in Indiana and elsewhere, potentially forcing job cuts and factory closures. Finally, erroneous reasoning prevailing in courts anywhere in the United States creates precedents that could lead to additional bad decisions in other jurisdictions.
The states’ brief asks the U.S. Supreme Court to decide whether the Constitution imposes any Due Process limits on the expansive use of public-nuisance law, Attorney General Hill said, adding that this case provides a perfect opportunity for such an assessment.
In the brief, Attorney General Hill elaborated as follows: “Cases such as this that enable courts to impose liability arbitrarily with no proof that the defendants caused any harm or can abate it in any recognizable way denigrate the appropriate power of attorneys general to abate legitimate public nuisances. . . . This theory of liability goes far beyond any traditional understanding of public nuisance law.â€
Other states joining Indiana in the brief are Louisiana, Texas, Utah and Wyoming.
