| On May 11, 2021, Senate Bill 697, which seeks to transform the tort of public nuisance in the context of hazardous lead paint, was considered by the Senate Environment and Energy Committee. Senator Teresa Ruiz introduced S697 during this legislative session, and this is now the third time in the session that the bill was up for a committee hearing. S697 constitutes a radical shift in legal theory away from the rule of law and toward unrestrained confiscation by the State.|
New Jersey has been proactive in establishing a comprehensive legislative and regulatory regime to combat this hazard since the early 1970s. However, certain New Jersey municipalities with deteriorating housing stock lack sufficient resources to address lead paint hazards. Accordingly, in the early 2000s, a group of those municipalities sued a group of paint manufacturers for money damages under a theory of public nuisance, which is rooted in tort. In an in-depth decision on the case issued in 2007, the New Jersey Supreme Court concluded that the municipal plaintiffs could not sustain a cause of action for damages since they failed to meet all of the elements of the tort of public nuisance.
The plaintiffs are now pushing for the Supreme Court’s decision to be undone through legislation. Rather than continue to reinforce the preexisting regulatory regime, S697 removes all of the elements of the tort of public nuisance as applied to the State in the context of lead paint. If the bill passes, then the State could simply identify the presence of lead paint anywhere in the State and demand payment from manufacturers. Obviously, this would present significant constitutional issues and is fundamentally unfair. It also sets a dangerous precedent that may be applied in other contexts.
NJCJI’s President, Anthony Anastasio, together with David Kott from the law firm of McCarter & English, LLP and Antonio Diaz from the law firm of Jones Day (on behalf of Sherwin-Williams), presented in-depth testimony in opposition to the bill. Mr. Kott began by outlining the history of New Jersey’s efforts to mitigate lead paint hazards and an explanation of the holding in the 2007 New Jersey Supreme Court case, In re Lead Paint Litigation. Anthony then discussed the legal policy implications of the bill, and the fundamental problems with gutting all of the essential elements of a common law tort that has existed for centuries. Mr. Diaz then discussed the history of lead paint in America and of public nuisance litigation brought by state governments related to lead paint, where governments never succeed and their litigation expenses are astronomical.
Despite the Chair of the Committee being an experienced attorney and openly expressing misgivings about the bill, it was still released from the Committee due to the New Jersey Attorney General’s endorsement of the bill. That endorsement is indeed remarkable considering this bill constitutes a radical departure from the rule of law. NJCJI will now focus its efforts on combating the bill as it advances to the full Senate and then over to the Assembly.
NJCJI’s written comments on the bill can be found here
NJCJI’s testimony in opposition to the bill can be found here at the mark of 36 minutes left in the audio feed.