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Paying for the Past

As City Council Gears Up To Sue Manufacturers Of Lead Paint, A Lobbyist Prepare To Defend The Paint Industry

Frank Klein
MAKE 'EM PAY: the Maryland Alliance for Children's Environmental Health's Terry Harris says that paint companies should pay to clean up the lead-paint hazards in Baltimore's aging housing stock.

By Stephen Janis | Posted 6/29/2005

There’s a bill lingering in committee in the Baltimore City Council that could cost paint companies a lot of money. Called Resolution 05-0045R, the bill asks the city solicitor to sue the paint industry for the multiple lead hazards plaguing the city’s aging housing stock. But paint companies, including Cleveland’s Sherwin-Williams Co. and Beltsville’s Duron, are not going to let the bill pass quietly. The two have hired lobbyist Kelley Ray, of local law firm Alexander and Cleaver, to, in her words, “monitor the situation.”

Traditionally, when dealing with lead-paint hazards in urban areas, local governments have pursued landlords that rent out buildings and apartments containing peeling, chipping, or damaged lead-based paint. The substance has been known to cause developmental damage to children exposed to it (“Full of Lead,” March 9, 2005). But increasingly, cities across the nation are looking to paint companies to make good for the problems lead-based paint has caused.

“These companies knew about the hazards of lead paint since 1910,” says Richard Lewis, the lead attorney on the city of Milwaukee’s 2002 suit against 12 paint companies, including Sherwin-Williams. The trial is pending an appeal by the paint manufacturers. “And yet they continued to market the product,” Lewis says. “[Milwaukee’s suit] really the best way to pay for the costs they incurred.”

Milwaukee is among dozens of cities that have attempted to sue the manufacturers of lead-based paint, which was outlawed in the 1970s (although Baltimore City banned its use much earlier, in 1950). The lawsuits argue that the paint left behind in aging homes is a public nuisance that interferes with human health and safety. In Milwaukee, the city argued that the paint companies should provide funding for the removal of paint in homes and special-education costs for children struggling with developmental disabilities due to lead-paint exposure, among other things. Lewis says the estimated cost of fully abating existing lead paint in the city’s housing stock would be “$90 million.”

Sherwin-Williams spokesman Antonio Dias argues suing the paint companies is misguided. “The lead-poisoning problem is primarily a result of property neglect,” Dias says. “It’s blaming the wrong people.” He says that Sherwin-Williams and other paints companies “took themselves voluntarily out of the lead-paint business,” and should not be held responsible for the acts of “negligent landlords.”

However, City Councilwoman Mary Pat Clarke (D-14th), the sponsor of the Baltimore resolution, says the paint companies should be held responsible because they were aware that lead paint was dangerous even as they sold it.

“The taxpayers are paying and children are suffering as a result of lead paint,” Clarke says. “We can’t just sit back and let other people do this.”

Clarke has met with Baltimore City solicitor Ralph Tyler and says he has promised to assign three attorneys to explore the case this summer. “We expect to have some conclusions by September,” Clarke says.

Terry Harris, spokesman for the newly formed Maryland Alliance for Children’s Environmental Health, a group looking to curb the state’s lead-hazard problems, points out that this would not be a revolutionary kind of litigation. “It’s no different than any other polluter leaving toxic waste behind that is dangerous to children,” he says. “It’s too difficult for the individual to take this on. Like the tobacco situation, we need help from the government.”

Dias counters that “there is no legal basis for the city to bring this case. There is absolutely no evidence of any attempt to conceal the harm of lead paint.”

But the Alliance for Healthy Homes, a Washington-based nonprofit childhood lead-poisoning advocacy group, believes otherwise. “The lead-pigment manufacturers knew of the dangers of lead-based paint since the early 1900s,” according to material on its web site. “[T]hey concealed the hazards from the public and promoted lead-based paint as safe, actually claiming that it promoted health and sanitation.”

Rick Rabin, a veteran litigator of lead-paint cases who now works for the Massachusetts State Health Department, notes that the presence of an industry lobbyist in Baltimore is a sign that the lead-paint manufacturers plan to fight any City Council action.

“If the paint companies can snuff the bill before a vote, they will,” he says. “They tried the same thing in Milwaukee. They’ve done it before.”

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