ConAgra Grocery Products v. California

Long-outlawed lead paint is not a public nuisance

Cases > > ConAgra Grocery Products v. California
Lost: U.S. Supreme Court declined to review the case
Case Court: California Court of Appeal

The State of California brought a lawsuit in 2000 to abate the alleged public nuisance caused by five companies’ manufacture and sale of lead paint at a time when lead paint was legal. The trial court found three of the companies to be liable for creating a public nuisance and ordered them to pay over a billion dollars into an abatement fund. As a consequence, the court opinion declares almost all properties in California that have lead paint on them to be per se public nuisances – exposing property owners to massive tort liability. The companies appealed and PLF filed an amicus brief arguing that argue that declaring lead paint to be a public nuisance violated the due process rights of both the paint companies and California property owners.  The decision from the U.S. Supreme Court was unfavorable in that the cert petition was denied.

In 2000, the State of California sued ConAgra, Atlantic Richfield Co. (ARCO), and other companies alleging that their manufacture and sale of then-legal lead paint constituted a public nuisance. The claim went to trial in 2013 and the court found the companies liable. It ordered a far-reaching abatement plan that declares a large portion of houses built before 1980 to be nuisances. If property owners enroll in the “abatement” plan, the government coordinates with them to conduct an inspection. The government keeps a list of all properties that do not enroll, which will be “deferred for actionable lead hazard control” until the property owner vacates or sells the property, unless a child is deemed at risk. In effect, the court declared millions of private homes to be a public nuisance. The companies appealed.

PLF filed an amicus brief highlighting the effect of the trial court’s opinion on the state’s property owners whose homes or other holdings are now declared to be per se public nuisances. The owners had no notice or opportunity to participate in proceedings yet their property now has a lead paint-tinted cloud over it. Any property owner who declines to participate in the abatement plan exposes himself to significant tort liability and dramatically reduced property value for maintaining a known public nuisance on the property. As with the corporate defendants that sold legal products, the property owners engaged in no wrongful behavior and must not be punished by judicial decree.

The decision from the U.S. Supreme Court was unfavorable in that the cert petition was denied.

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What’s at stake?

  • The doctrine of public nuisance is so vague that no legal authority actually knows what it means. If not strictly cabined, government may use the doctrine to violate individuals’ due process rights.
  • If sellers of a legal product may be held liable for causing a public nuisance, decades after engaging in activity that was lawful at the time, businesses will face constant uncertainty and a disincentive to operate in California.

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