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October 31, 1990
"Urgent Appeals to Motions"
San Jose Mercury News
By Timothy Taylor
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IN November 1986, an environmental initiative on the California ballot stirred enormous controversy.

Every major environmental group lined up behind Proposition 65, and traveling bus loads of Hollywood celebrities toured the state, providing glamorous support.

On the opposing side, business and agricultural interests warned that passage of the proposition would lead businesses to flee the state in droves, and bankrupt those who stayed behind.

When the votes were counted, the Safe Drinking Water and Toxic Enforcement Act of 1986 had passed overwhelmingly, with 63 percent of the vote.

Now, four years later, the high promises, dire threats and strong rhetoric that surrounded Proposition 65 seem wildly overblown. Strangely enough, it appears that both the biggest selling point and the biggest potential problems of the initiative have turned out to be largely irrelevant.

For those who can't quite remember what all the fuss was about, Proposition 65 made two main promises. First, it prohibited business from knowingly releasing into drinking water any chemical that caused cancer or reproductive toxicity. Second, it required that business warn people before knowingly exposing them to these chemicals in any way.

Notice that both of these provisions apply only to business. Proposition 141 on next week's ballot would extend the provisions to apply to state and local government, too.

The initiative clearly hit a nerve back in 1986, and the biggest selling point was people's concern about whether their drinking water was safe. But as it has turned out, the Safe Drinking Water Act has had almost nothing to do with the safety of drinking water.

The California Office of the Attorney General sent me a list of all cases of Proposition 65 litigation that had come to its attention. Only one case, an attempt to block malathion spraying in the Los Angeles area, is even tangentially related to a chemical that might have ended up in drinking water. And that case was lost; the spraying took place.

As opponents of Proposition 65 argued back in 1986, it turned out that laws for keeping drinking water clean were already on the books, and already provided greater penalties than those implemented by the initiative. For its main advertised purpose, Proposition 65 has turned out to be simply unnecessary.

The most threatening potential problem of Proposition 65 turned on how a lack of clarity in the wording might lead to a flood of lawsuits. Businesses were concerned that the initiative didn't specify which levels of chemicals required warnings or at what level of exposure. Moreover, the initiative included a "bounty hunter" provision giving private citizens a right to sue and collect damages.

Between the confusion of no explicit standards and the incentives for private suits, business feared that it would be submerged in costly lawsuits. (In the interests of full disclosure, I should confess that I wrote the Mercury News editorial opposing Proposition 65 on these grounds and others while working for the newspaper in 1986.)

But according to the state attorney general, only 33 cases have been filed under Proposition 65 since its passage, through the middle of this month. One-third of those cases involved arguments over what chemicals should be on the list, but despite some flagrant foot-dragging by the Deukmejian administration, the chemicals and standards under Proposition 65 were established fairly quickly.

Despite the "bounty hunter" provision, only two Proposition 65 cases have been brought by citizens: One was settled out of court, one is still pending. The expected flood of litigation never arrived.

As it turns out, the second requirement of Proposition 65, requiring warnings of chemical exposure, has turned out to serve both a pointless and a useful function.

The pointless function is that it has caused every business to post signs everywhere that warn vaguely that something in the area may include a chemical (usually unnamed) on the Proposition 65 list.

You may have noticed the warnings outside groceries, at gas stations, in restaurants, as you enter your workplace, in newspapers, and so on and so on. In fact, one lawsuit in Solano County actually sued builders for "overwarning." Plastering vague signs about very minor health risks all over California hasn't helped anyone but the companies that manufacture the signs, as far as I can tell.

But in some cases, the warnings of exposure to substances linked to cancer or reproductive toxicity have been more useful. Of the various Proposition 65 enforcement suits, one required warning labels to be placed on cigars and pipe tobacco; three cases pressured makers of typewriter correction fluid to reformulate it in a way that didn't use trichloroethylene; another case required a warning on a medical sterilizer that uses ethylene oxide. A couple of other cases required warnings about possibly dangerous chemicals in paint strippers and solvents, while other cases warned against paradichlorobenzene in moth-control products, room fresheners, and diaper pail liners.

Probably the most important enforcement cases involved pressuring five major companies in the Los Angeles area to stop emitting ethylene dioxide.

None of these cases are earthshaking; in fact, most of them could have been prosecuted under existing laws. But Proposition 65 gave them all a push.

Technically, all Proposition 65 requires is that a warning be placed on the products that contain certain chemicals, but companies often choose to reformulate their products to avoid having to use such a warning.

It's a good thing to have some pressure on business to substitute less toxic chemicals wherever possible, and Proposition 65 seems to be providing some pressure for that to happen. I hope we see more of it.

Moreover, the cases that go to court are only the visible examples. When companies see the writing on the wall, or are threatened with the possibility of a Proposition 65 suit, they may change their behavior or their product immediately.

The Safe Drinking Water and Toxic Enforcement Act of 1986 is still young. Perhaps in future years it will be used in outpourings of litigation and enforcement, validating both the promises of supporters and the worries of opponents.

But although Proposition 65 has turned out to be a sort of cream-of-wheat initiative, healthy and bland and inoffensive, it is bothersome to me that Californians spent months listening to arguments on both sides, went and voted, and now have found that the arguments they voted on were more or less irrelevant to what has actually happened.

The Safe Drinking Water Act was a continuation of what is becoming a California political tradition: the use of ballot initiatives to rile up the juices of interest groups that are likely to support particular candidates.

Proposition 65 was written by campaign aides for Tom Bradley, as part of his attempt to bring out voters who would support his Democratic bid to unseat Governor Deukmejian. The tactic didn't work for him, but pollster Mervyn Field has argued that the presence of Proposition 65 on the ballot helped provide Alan Cranston with his margin of victory over Ed Zschau in the U.S. Senate race that year.

In this year's Democratic primary, would-be nominee John van de Kamp was still trying to make hay out of his vigorous support for Proposition 65. He also helped write "Big Green," this year's fuzzy and all-encompassing environmental initiative.

Of course, Dianne Feinstein disrupted his personal plans in the Democratic primary, but since then has adopted the strategy herself.

Ballot initiatives as political tools need to be broad in scope, so they can stir lots of diverse supporters. They need to be fuzzy on some points, to avoid alienating key support, and to have special-interest breaks included to attract other support. They are intended primarily as an emotional rallying point, only secondarily as legislation.

When confronted with such beasts on the ballot, it's little wonder that voters become as cynical about the initiative process as they are about the state Legislature that the initiatives were once intended to check and balance.

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