California Gov. Jerry Brown is seeking to revise Proposition 65, formally titled The Safe Drinking Water and Toxic Enforcement Act of 1986, to reduce instances of lawyers filing frivolous lawsuits under the Act for the purpose of monetary gain.
Multiple Reforms Proposed
The goal of Prop. 65 was to protect drinking water sources from toxic substances that allegedly cause cancer and birth defects. Unfortunately, according to Brown, unscrupulous lawyers are misusing the law to seek monetary gain through frivolous lawsuits.
Brown’s reforms would limit attorney fees awarded under the Act, require plaintiffs to present more evidence to support drinking-water claims, revise the threshold of chemicals sufficient to trigger the Act, and provide the public with more information on toxic chemicals and how to avoid exposure to them.
Brown argues Prop. 65 is a good law that has helped many people but is being abused by unscrupulous lawyers. Brown says his efforts will improve the law so it can do what it was intended to do—protect Californians from harmful chemicals.
Reforms Illustrate Law’s Flaws
H. Sterling Burnett, a senior fellow at the National Center for Policy Analysis, says Brown is proposing helpful reforms. Brown’s willingness to take on trial attorneys and an aggressive environmental law demonstrates how necessary the reforms are, Burnett says.
“On environmental laws, Brown is always on the far left, so there must be something really wrong with the law” for him to feel the need to reform it, said Burnett.
According to Burnett, Brown favors revising Prop. 65 for three reasons: first, California is running record budget deficits, and this is driving businesses away; second, Prop. 65 does nothing to help human health; and third, Brown is becoming frustrated with trial lawyers getting rich by abusing the law.
More Reforms Urged
Angela Logomasini, a senior fellow at the Competitive Enterprise Institute, applauded Brown’s proposed reforms.
“I’ve always felt the law was designed as a get-rich-quick scheme for lawyers and environmentalists,” Logomasini said. “This is a good first step in the right direction. California should make it more difficult for trial-lawyer bounty hunters to collect.”
Nevertheless, Brown should go further with his proposed reforms, Logomasini advised.
“I believe there are too many chemicals on the list. Instead of looking at hazard, they need to look at risk,” she explained.
“Also, the regulations are dumb,” said Logomasini. “For instance, the law, the way it’s written, requires you to post warning signs if you have so-called cancer-causing agents on the premises. So when you go to Disneyland, there are warning signs saying that products used in the park may give you cancer and reproductive problems!
“What’s happened is people think that when large enough doses of a given substance are force-fed to mice, those chemicals will cause cancer in humans even though humans are not mice. Humans are much larger than mice, have much smaller relative exposure to the chemicals than the mice, and are much different physiologically than mice. God bless Gov. Brown for rewriting the law, but he needs to go a lot further,” said Logomasini.
Businesses ‘Shaken Down’
California family business owner Skip Brown, who operates an asphalt-paving business, says Prop. 65 has made California a bounty hunter’s paradise.
“I believe a lot of businesses have been shaken down by the trial lawyers. They go through the phone book, and if your business has anything to do with the offending chemical, they will send you a letter announcing their intention to sue, but for a fee they will excuse you from their litigation. So everyone in my business that got a letter banded together and fought it. I had to put a sign outside my facility and pay $20,000 in order to be waived from any future litigation,” said Brown.
As a result of the faulty law, many very useful products and chemicals used in the asphalt business are being replaced, Brown said. He worries that since the state has declared diesel exhaust to be a toxic substance he will have to buy all new equipment. If that happens, he predicts he will have to close his business.
Few Plaintiffs Filing Many Suits
Phil Davis, editor of California Transportation News, which covers the trucking industry in the Golden State, says many smalltime lawyers have turned Prop. 65 into a cottage industry and gotten rich in the process.
“Most of the money generated from Prop. 65 lawsuits goes to the attorneys,” Davis noted.” In 2011 there were 338 cases filed by just five plaintiffs, and only 3 percent of the lawsuits were filed by the State’s Attorney General.”
“Prop. 65 lawsuits cost the state about $20 million a year, and it winds up in the hands of the lawyers,” said Davis.
“The real problem is overregulation. The last time I looked, there were over 800 chemicals on the list,” he added.
One way to solve this, he suggests, would be to change the wording from “may cause cancer” to “does cause cancer.”
“Gov. Brown is 74, and he’s not a wild-eyed liberal anymore,” said Davis. “I think he’s trying to unscrew it [the economy]. Even the trade unions are saying ‘Do something because we need some jobs!'”
Kenneth Artz ([email protected]) writes from Dallas, Texas.
Artz has more than 20 years’ experience in nonprofit organizations, publishing, newspaper reporting, and public policy advocacy.
