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Pennsylvania Commonwealth Holds Lead Paint Is Not a Public Nuisance

On May 5, 2023 in Atlantic Richfield Company, et al. v. The County of Montgomery, Pennsylvania, No. 1338 C.D. 2021 (Pa. Cmwlth. 2023), the Pennsylvania Commonwealth Court rejected a novel attempt to hold paint manufacturers liable for lead paint in residential structures based on a public nuisance theory. 

Montgomery County, Pennsylvania (the “County”) filed a complaint against various defendants which manufactured paints for household use between 1880 and 1977.  The County claimed that the health hazards associated with use of lead paint have been known for centuries, and that Defendant manufacturers engaged in an ongoing public nuisance by continuing to market lead paint in ways that omitted or obfuscated the health hazards.  The County alleged that over 200,000 residential structures within the County had been constructed before lead paint was banned and therefore may be “contaminated by lead paint.” 

The complaint claimed lead paint is a public nuisance under the Lead Certification Act (“Certification Act”), 35 P.S. §§ 5901-5916, as well as under Pennsylvania common law.  The manufacturers filed preliminary objections, asserting that the Certification Act does not declare the presence of lead based paint a nuisance.  Rather, according to Defendants, the Certification Act regulates training and performance of persons engaged in lead paint abatement, not the existence of lead paint.  As to the County’s common law public nuisance claim, Defendants argued the County could not state a claim because it did not identify the manufacturer of any particular lead based paint at any particular property which was part of the alleged nuisance.

The trial court overruled the preliminary objections, noting the paucity of Pennsylvania appellate decisions addressing the issues, and Defendants filed an interlocutory appeal.  The Commonwealth Court reversed.  First based on the express language of the statute, the Court held that the Certification Act does not “explicitly” declare anything to be a public nuisance.  Analyzing the history and legislative intent of the Certification Act,  the Court held that the Certification Act also does not implicitly support the County’s public nuisance claim, because it does not “retroactively proscribe[] the past manufacture and sale of lead paint, which is the only conduct the [Complaint] attributes to the Manufacturers.”  Rather, the Certification Act was intended to address “the dangers posed by the improper abatement of lead paint” and specifically provides that proper abatement may create a “lead-safe” environment, rather than one that is “lead free.”  The Court further held that the Certification Act empowered only the Department of Environmental Protection to enforce the Certification Act, not political subdivisions like the County. 

Accordingly, the Court concluded that the Certification Act “does not declare lead paint to be a public nuisance.  Section 10 of the Certification Act also does not empower the County or other political subdivisions to enforce its provisions, and even if it did, the [Complaint] fails to identify which provision the Manufacturers allegedly violated.”

As to the common law public nuisance claim, the Court determined that the rights alleged by the County were not “collective in nature,” as is required to state a claim for public nuisance.  Rather, the County’s claim was more akin to a series of individual harms, and “[t]he sheer number of violations does not transform the harm from individual injury to communal injury.”  

The Court further agreed with Defendants that the County could not establish causation.  Pennsylvania courts have declined to apply market share liability theory to lead paint claims, see Skipworth by Williams v. Lead Indus. Ass’n, Inc., 665 A.2d 1288 (Pa. Super. 1995), instead requiring plaintiffs to prove that lead paint manufactured by a particular identified defendant is present and causing harm at a particular property.  The County argued Skipworth was limited to products liability cases, but the Court rejected this argument, holding “[w]hether a plaintiff alleges negligence or a public nuisance, the same impediments to a reliably accurate calculation of liability prevent the market share liability theory from being fairly applied in the lead paint context.”  The Court further found that the County’s allegations were “essentially a products liability claim raised improperly under the guise of a public nuisance action.”  Accordingly, the Commonwealth Court reversed the trial court’s order and remanded to the trial court for entry of an order dismissing the complaint.

Counties in California have recently been successful in lawsuits alleging manufacturers created a “public nuisance” by promoting lead paint despite knowledge of the hazards.  It appears Pennsylvania courts, however, have shut down the public nuisance theory as an avenue for holding lead paint manufacturers liable in Pennsylvania.