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

Conclusion

which, in fact, is what transpired. The attorney general’s authority also is strengthened and presumably legitimized when the legislature enacts statutory provisions declaring that the manufacture or distribution of speci‹ed unlawful products constitutes a public nuisance.65 Regulatory Product Claims in the Face of Legislative Disapproval Justice Jackson’s opinion makes it clear that a state legislature has the constitutional power to prevent the attorney general from ‹ling a parens patriae action against either the manufacturer of a speci‹c product or the manufacturers of all products. For example, during the cycle of litigation against ‹rearm manufacturers, a number of state legislatures prohibited the ‹ling of such actions by the state attorney general.66 Even in the absence of legislation explicitly prohibiting parens patriae regulatory claims by the attorney general, the legislative response to such social problems as childhood lead poisoning or tobacco-related illnesses may implicitly signal a rejection of the approach the attorney general seeks to implement in the product regulatory litigation. Consider, for example, the situation in Rhode Island when the state legislature enacted a comprehensive regulatory scheme designed to prevent childhood lead poisoning by placing the burden of eliminating lead-paint hazards on property owners and mandating that they undertake speci‹ed measures to render residential properties “lead-safe.” Despite this legislative scheme, the state attorney general ‹led a parens patriae regulatory action that sought to hold manufacturers of lead pigment, not property owners , ‹nancially responsible and that imposed more demanding standards for remediation of lead-based paint hazards. In this situation, it appears that the legislature implicitly rejected some of the fundamental goals of the state attorney general. As previously noted, the Rhode Island Supreme Court, as well as the New Jersey Supreme Court, relied heavily on legislative enactments at odds with the state’s or municipalities’ litigation when they dismissed government actions against pigment and paint manufacturers. Regulatory Products Claims and Legislative Silence The issue of whether the attorney general is authorized to act alone to initiate a regulatory civil action in the absence of either legislative approval or disapproval, whether expressed explicitly or impliedly, is more dif‹cult under Justice Jackson’s analysis. If the legislature has been truly silent, as contrasted with the situation where the legislature merely has failed to respond with the aggressive stance preferred by public interest advocates, the resolution of this question is a dif‹cult one, which must be informed by one’s 208 suing the tobacco and lead pigment industries evaluation of the respective institutional competencies and fairness of the legislature and the of‹ce of the attorney general. Public interest advocates and mass plaintiffs’ attorneys argue that the state attorney general is justi‹ed in acting on his own to sue tobacco and lead paint manufacturers because the legislature has failed to regulate those industries. They further argue that if the legislature believes the attorney general is impinging on its authority, it can always enact legislation preventing such litigation, either generally or against a speci‹c industry. This latter argument is suggested by the U.S. Supreme Court’s reasoning in 1981 in Dames & Moore v. Regan,67 where the Court held that Congress had implicitly approved the practices followed by American presidents in settling claims between American citizens and hostile nations, despite the lack of explicit statutory authority.68 The situation in Dames & Moore, however , involved more than legislative acquiescence inferred from inaction. There, Congress had repeatedly passed related legislation, “thus demonstrating Congress’ continuing acceptance of the President’s claim settlement authority.”69 In other words, the situation in Dames & Moore is more like that of those states that passed statutes facilitating parens patriae against the tobacco companies than like the situation of state legislatures that have merely failed to act. It is widely accepted that the legislature’s failure to act does not necessarily indicate its opposition to a proposed piece of legislation.70 Hence, the legislature’s failure to stop parens patriae litigation should not be construed as acquiescence in such litigation. It is far easier to kill a legislative proposal than it is to enact it. If the attorney general indicates his intention to ‹le a regulatory action against product manufacturers, a legislature wanting to stop the litigation must undertake a dif‹cult process that requires action by each house of the legislature, the signature of the governor, and the time and energy required to accomplish these steps during a crowed and busy legislative session. Adding to the legislature’s challenge is...