The Proposition 65 Game Changer
For years I have said that anyone who looks at the private settlements related to Proposition 65 (The Safe Drinking Water and Toxic Enforcement Act of 1986) or the 60-Day Notice Section on the Attorney General’s website would definitely come to the conclusion that there is a clear abuse of this initiative.
The problem is that a large group of Californians were not around when voters approved Prop. 65, or were too young when it passed to understand it. This has created a large learning curve in explaining to people how it is being abused. One great article on the abuse was written by Anthony Caso back in March 2012 for the Federalist Society. Mind you, this focuses primarily on the private settlements and the bounty hunter issues, but it is still a good read.
Earlier this year, Assemblyman Mike Gatto (D-Los Angeles) introduced AB 227 to combat Prop. 65 abuse. CALA was one of the first to applaud Assemblyman Gatto for introducing this bill to address a concern of his constituents. He saw an abuse and he wanted to try and correct it. I think it would be fair to say that the trial lawyers and environmentalists were not thrilled when they first saw the text of the bill. Gatto was willing to sit down with them and others to narrow the focus of his bill and see if we could get some kind of language that was workable.
At the April 30th Assembly Judiciary Committee hearing, the amended language to AB 227 was introduced and both the environmental community and trial lawyers added their support. The amendments to AB 227 narrowed the focus of the bill’s application to alleged violations relating to exposure to alcohol and food-related chemicals, tobacco smoke and vehicle exhaust. In only these cases, an alleged violator can avoid a lawsuit by paying a $500 penalty for each facility where the violation occurred and posting the required warning signs within 14 days of being notified of the violation. This legislation has passed out of two policy committees on unanimous votes.
Then came the game changer. On May 7th (Trial Lawyer Lobby Day), around 11:30 a.m. a large group of people received an email from the Governor’s Office entitled, “Prop. 65 Stakeholder Briefing Invitation.” It announced a meeting to take place that same day at 3:30 p.m. to lay out the Governor’s proposals of reform for Prop. 65. His reforms are outlined here.
Not only does the Governor jump into the debate on Prop. 65 reform, he does it on the Trial Lawyer Lobby Day of all days. This is huge. If anyone is frustrated with how Prop. 65 is being abused, it is Governor Brown. He has a long history on this issue and the fact that he has injected himself, his staff and key members of his administration is big.
One of the key reform elements is abusive lawsuits. To quote Governor Brown, “Proposition 65 is a good law that has helped many people, but it’s being abused by unscrupulous lawyers.” The Governor wants to improve the law so it can do what it was intended to do. There will be a series of stakeholder meetings over the coming weeks to see if there is agreement on his reform package. If so, I would think that language might be amended into Assemblyman Gatto’s AB 227 in the next couple of months.
One of the most interesting aspects of the Governor’s recent announcement is that he views the Prop. 65 debate not only as an environmental issue, but also as an economic development issue. CALA is very supportive of the Governor’s efforts and will be at the table to help push for common sense reform to stop abusive Prop. 65 lawsuits. Just as in the discussion regarding reform to California’s Americans with Disability Act laws, there is common ground and I am hopeful that we will see major legal reform in this area by the end of summer.