Suing the Tobacco and Lead Pigment Industries: Government Litigation as Public Health Prescription

Notes

the statutory frameworks in those states that have been comparatively effective in substantially reducing the incidence of children with EBLs, notably Maryland and Massachusetts, suggest that only interim controls should be required. As described previously, the cost of interim controls typically is a modest fraction of the cost of full abatement, yet studies suggest that the reduction in the quantity of lead-bearing dust in the home is comparable. By way of review, a nonexclusive list of required interim controls would consist of the following measures: removing chipping, peeling, or ›aking paint and repainting; replacing windows and window frames painted with lead-based paint or preventing them from rubbing against each other; and preventing hanging doors from rubbing against the door frame. Existing state laws and federal regulations, where they are applicable, require compliance with interim control standards only in rental housing. Most childhood lead poisoning does in fact occur in low-income rental housing. Implicitly, at least, the assumption seems to be that property owners who own their own residences presumably already have suf‹cient incentives to maintain their properties, for two reasons. First, they do not want to risk harming their own children. Second, as they undertake the upkeep , renovations, and repairs that otherwise maintain the appearance, functionality, and market value of their own homes, they also tend to minimize lead-based paint hazards. Further, I have observed state legislators recoil at the suggestion that they should place on homeowners legal obligations to maintain their own homes in order to protect their own children. Such a reaction seems to reveal that legislators do not fully understand the severity of the risks posed by childhood lead poisoning. In a very real sense, for someone to recklessly subject his own child to lead-based paint hazards is every bit as much a form of child abuse as failing to provide the child with food or medicine. Ultimately, all pre-1978 residential properties where children reside, including owner-occupied properties, need to comply with interim controls designed to substantially reduce the risks of childhood lead poisoning. These issues regarding what needs to be required in order to eliminate the incidence of childhood poisoning are easy ones compared with the question of who should pay for it. At the current time, most of these costs are borne by property owners, and there is an element of fairness in this allocation of ‹nancial responsibility. In recent decades, the fair market value of older, low-income housing has been reduced by the risks of lead-based paint.16 Accordingly, at least in many markets, property owners in recent decades probably acquired older residential properties at a discount 224 suing the tobacco and lead pigment industries re›ecting the presence of lead paint. The implementation of either interim controls or full abatement likely will increase their market prices. Further, both the risks to children and the costs of implementing interim controls are greatest in those units that property owners have most neglected. At the same time, property owners understandably protest that they should not be required to bear the full brunt of the ‹nancial responsibility for eliminating lead-based paint hazards. They argue that the producers of lead pigment and the manufacturers of lead-based paint that distributed these products should bear all or at least some of the ‹nancial responsibility . It is unlikely, particularly following the decisions in Rhode Island and New Jersey, that the manufacturers who produced lead pigment or the paint containing it can be held liable under the common law. For all the reasons described in this book, these decisions appear to be well reasoned and legally well grounded. Altering common-law doctrines to hold pigment or paint manufacturers liable for the costs of abatement is ill advised. An alternative to relying on the judicial system to force a ‹nancial contribution from manufacturers to help end lead-based paint hazards would be to impose a federal excise tax on the sale of paint. Of course, the paint sold today does not contain lead and poses no risk. Such a tax, therefore, would not be a proxy for legal liability, culpability, or even causation. Popularly elected legislatures, however, are supposed to tax and spend to solve social problems. Unlike courts, they need not ‹nd that the assessed party caused the harm or that its actions fell within the legal de‹nitions of tortious conduct. An excise tax would simply be a means of ‹nancing a solution to a public health problem for...