How to End Lead Wars in America

What would happen if we decided to end an epidemic? What would happen if local governments demanded that companies that had polluted their towns and cities should clean up the messes they made? What would happen if we, as a society, decided our children were "worth" the cost of protecting them from a well-understood toxin? In California, a Superior Court judge, James Kleinberg, has given us an answer -- and a startling answer it is!

He has declared that lead poisoning, the longest running childhood epidemic in American history, must come to an end -- at least in San Francisco, Los Angeles, San Diego, Oakland and six other cities and counties. Three weeks ago he ordered National Lead, Sherwin Williams and ConAgra, three lead pigment manufacturers who sold and marketed lead paint in the state for nearly a century, to pay $1.1 billion to county and city public health department s to abate the lead hazard in 4.7 million homes. And just today, following an appeal by the industry to reconsider his decision, he added insult to injury by adding another $50 million to their bill.

If middle class children were threatened by an tiny outbreak of meningitis or a potential epidemic of SARS, or even a mild flu, the nation's public health profession would have mobilized, closing down the schools where children congregated, watching the airports for sick passengers, initiating public health education campaigns for parents, developing vaccines or even isolating cases in sterile hospital rooms -- all in order to stem an infection. But, for at least a century, we have been taught that poor children of color were the primary victims of lead poisoning and, so, the issue and the suffering has largely flown below the radar of professionals who see removing lead as "too costly." We have made a cynical calculation that looks at the costs of lead removal in dollars and cents rather than in the cost to children whose life-chances have been reduced and to a society that becomes all the more callous to the suffering of its fellow citizens. The CDC estimates that today more than half a million children have blood-lead levels above acceptable levels and are at risk of neurological, perceptual, behavioral and physical damage caused by low levels of lead exposure. Hyperactivity, lost IQ, dyslexia, Attention Deficit Disorder, failure in school and even delinquency have all be associated with exposure to lead dust in utero or in the first six years of life. This paint was the legacy of a time when companies routinely put white lead pigment in their product despite knowledge that children were, and would be, poisoned by it. For the past century childhood lead poisoning has been the bane of public health and housing authorities who have shivered at the enormous costs of removing hundreds of millions of pounds of lead paint from 38 million homes around the country. But in an act of incredible humanity and boldness Judge Kleinberg decided that enough was enough and future generations needed to be protected.

In the coming months and years we will undoubtedly be barraged by a public relations campaign from the industry and its supporters. In fact, it has already begun. Forbes has already lowered the boom by declaring that a "California Judge Terrorizes Business with an Orwellian Tort Travesty." The campaign will be aimed at influencing the Appeals Court and Supreme Court in California to believe that this decision was wrong-headed and misdirected. Undoubtedly we will see articles that parrot the lead industry's traditional arguments that lead exposures are much lower than they ever were; that the impact of lead on children's health is unproven and overblown; that California has "only" a small number of cases every year; that the real culprits are landlords, not the paint companies; that the real dangers are from the removal itself; that "intact" paint is not dangerous; that it is only poorly informed parents that let children be exposed to lead; that lead hasn't been in paint for over 30 years and that this is a problem of the "past," when "no one" could have foreseen the impact of low level exposures; or, alternatively, that everyone knew about the dangers of lead; that liberal judges or misinformed public health advocates; or ... the list will be endless and it has already begun. These are tried and true tactics meant to confuse and mislead the public and to poison the atmosphere in which courts make their decisions.

But, thankfully, Judge Kleinberg has issued a very clear and very extensive decision that addresses virtually all of these "objections" and, if the appeals courts have as much character as he has, and follow the law as he has, the children and the county officials should win the day. In his extensive brief many eloquent statements stand out but one seems especially relevant as we realize that we are talking about the 50,000 kids in these California's cities who have been diagnosed with elevated blood-leads between 2007 and 2010, the 10,000 who were identified in 2010 alone and the thousands of others who are threatened by lead every day of their lives, not some abstract statistic. On page 96 of his decision judge Kleinberg writes a section titled "What is to be Done?" in which he begins: "Consistent with their arguments throughout the trial the Defendants rely on statistics and percentages. When translated into the lives of children that is not a persuasive position. The Court is convinced there are thousands of California children ... whose lives can be improved, if not saved through a lead abatement plan." With this short statement the judge condenses decades of arguments into the one simple fact that lead continues to plague the nation and it is essential that we hold accountable those who wantonly poisoned our children and our society.