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Event Transcript
December 13, 2001


America’s Challenge: Finding Effective Solutions to Lead-Paint Hazards

EXECUTIVE SUMMARY

The children of the United States are in danger from lead in paint manufactured before 1978. Disputes about how to solve the problem have pitted public health officials and trial lawyers against landlords, insurance companies and paint manufacturers. To achieve a better understanding of this controversial issue from the public policy perspective, the Manhattan Institute convened five experts on lead-hazards and their remedy. These five experts presented, in turn, the following views:

  • Randy Lutter, Resident Scholar at the American Enterprise Institute, argued that lawsuits against paint companies are incompatible with three accepted purposes of civil litigation. A far better solution, Lutter maintained, would be to improve the incentives for removal of lead hazards through a tax credit.
  • James Price, who helped develop the Community Lead Education and Reduction Corporation, proposed that policies to remediate lead hazards should be shifted from a housing-based to a family-based model.
  • Andy Miller, former Attorney General in the State of Virginia, recommended that safety statutes be crafted with deadlines and sanctions which can be effectively enforced.
  • Dan Chute, an environmental health inspector, contended that current policies on lead hazards are contradictory and ad-hoc, the product of hype and demagoguery rather than of scientific and rational effort. He made the case for a simplified and standardized approach.
  • Don Gifford, former Chairman of the Maryland Lead Paint Poisoning Commission, argued that legislation, not litigation, is the answer. He described six key features of effective laws.

In the following pages these ideas are presented in detail, edited from a transcript of the proceedings. The full, unedited transcript may be found at [Lisa: supply web link]. It is the hope of the Manhattan Institute that all who care about the safety of America’s children will find, in these proceedings, the intellectual beginnings of an end to this danger.

TWO BAD REMEDIES, AND ONE GOOD SOLUTION
Randy Lutter

INTRODUCTION

The United States has suffered through an extraordinary epidemic of lead in the blood of its children. The control of that epidemic is one of the great public health-victories of the last twenty-five years. In 1990, the U.S. Department of Housing and Urban Development estimated that 64 million homes had lead-based paint problems. A recent draft survey by HUD fixed that number at around 38 million.

The problem is not completely solved, however, and the danger is unequally distributed. Poor, urban, African American children are most at risk. The real “success-stories,” moreover, account for a mere fraction of the reduction. Most of the change, in fact, may be ascribed simply to people moving out of older homes.

How, then, can we make the number of true success stories more commensurate with the scope of the problem?

In what follows I evaluate two of the favored solutions—uncompensated landlord removal of lead hazards, and lawsuits against paint companies—and find them unsatisfactory. I then propose a remedy which is not now used, but should be—namely, the use of tax incentives.

LEAD REMOVAL BY LANDLORDS

The control of the hazard lies with the owner of the property. And surely, a landlord benefits morally from doing the right thing. But thinking about the problem as an economist might: What do landlords get, economically, if they spend money to reduce lead hazards? The answer, unfortunately, is: Not much.

There is, potentially, an increase in the real-estate value. Landlords can claim that a property is “lead-safe”—or that the hazards have abated—and can thus claim an increase in rental income. The evidence that they are actually able to claim any rent increases which are more than marginal, however, is mixed at best. In fact, by my reading it is nil.

Potentially, too, landlords could enjoy a lower risk of litigation. Perhaps then insurance companies will give landlords who reduce lead-paint hazards a break on liability premiums. But here too, demonstrable gains are marginal. The probability that any given landlord will have to pay an award is small. Even though payouts are large, the risk of losing a lawsuit and paying damages is too small to provide much incentive.

LITIGATION AGAINST PAINT COMPANIES

A measure which has become increasingly popular, over the last decade, is to sue corporations linked to entities which once produced lead paint. These lawsuits typically involve contingency financing. Private law-firms go to city governments, and say: “We will file suit for you, in exchange for a percentage of the winnings. And indeed, both the cities and the law firms stand to reap substantial gains if a court awards damages.

From the point of view of three accepted purposes of civil litigation, however, these lawsuits are unsatisfactory.

  1. They don’t involve just compensation. None of the companies sued is currently making lead-based paint. These are companies that bought companies that once produced lead-based paint. The compensation, moreover, is indirect. The lead surely harms children. But it doesn’t directly harm the cities, as legal entities. Cities may be harmed indirectly, because they require remediation expenses. But the primary victim is the child.
  2. They provide no deterrent. Lead-based paint has been banned. Nobody is producing it. Suing a paint company does not deter that company from doing anything it is now doing.
  3. They don’t promote good accountability. Under these lawsuits, companies are held liable not for what they knew when leaded paint was produced, but for what is known now. The implications of this kind of retroactive accountability are ominous. If these suits are successful, any company, selling any product might, might find itself liable for damages associated with later discoveries—even though its products are now pronounced by science, and government, to be safe. To use a sports analogy, this amounts to a rule change after the kick-off.

THE CASE FOR TAX INCENTIVES

To make the number of success stories commensurate with the scope of the problem, we cannot rely on litigation—and certainly we cannot rely on litigation against paint companies. Ultimately, we must rely on the self-interest of those who actually have the power and the responsibility to remove the hazards. That means giving landlords an incentive to remediate.

The proposal I’m about to make reflects a line of thinking that doesn’t originate with me. In fact, to give credit where it’s due, I first starting thinking about tax incentives in 1997, when the Clinton administration was searching for answers to a problem not directly connected to lead paint.

The White House was then looking for a low-cost way of promoting energy efficiency. To that end, the Environmental Protection Agency proposed subsidizing the replacement of old windows.

It occurred to me that the replacement of windows presented an opportunity to achieve not just energy savings, but lead-based paint benefits as well. After all, old widows are a source of friction-contact surfaces, and become a source of lead-dust.

The question then arose in my mind: How should the removal of old windows—or of lead-paint hazards generally—be subsidized? In my view the best procedure, the one which would do the most to improve incentives, would be a tax credit.

This could work in a variety of ways. For instance, one could specify, in a plan to remove both lead paint and old windows: “If the home is built before 1950, and if you have single-pane glass windows, then you get X dollars from the government to replace it with something safe. Alternatively, we have these certified, trained lead inspectors. If they certify that there is lead-based paint on a particular window, then will receive a government tax-credit to remove it.”

CONCLUSION

Any policy which rewards legitimate and natural human proclivities will be, ipso facto, superior to one which works against them. The approach described above would improve the incentives for the people who have control of the problem. Over the long term, it would produce far more success stories than we have seen over the last decade. It would not hold anyone accountable in ways which are punitive or unjust. It would not, perhaps, provide much profit to elite law firms. But it would reduce the levels of lead in the blood in American children.

LIMITS TO A HOUSING-BASED MODEL
James Price

INTRODUCTION

The Community Lead Education and Reduction Corporation, also known as ClearCorps, is an aspect of the United States National Service Program, which helps families protect their children from lead poisoning. It relies on individuals who volunteer their time to meet unmet community needs.

ClearCorps’ priorities—set by HUD in 1995—emphasize the removal of lead hazards in housing built before 1950. That’s where the highest percentage of lead in paint is found. The treatments, or protocols, include safely repairing deteriorating paint, and following up at six- and twelve-month intervals to make sure that the hazard has really been removed.

In applying these protocols, ClearCorps has achieved great success. We’ve saved many children from the dangers of lead. But we’ve also learned an important lesson. Namely: There are limits to a housing-based model for tackling this problem. These limits take four specific forms.

HOUSES DON’T TALK TO HOUSES

Lower-income families move an average of nearly once a year. Their housing, moreover, is the least desirable, the oldest, the most likely to be abandoned. And in fact, when ClearCorps went back to do its follow-up inspections, it would find that perhaps four of every ten units were boarded up.

Where were the families? The concern had to be that they were in houses not too different from the ones that were abandoned.

ClearCorps had thus put its time, effort, and money into making units lead-free, only to have those units disappear—and only to have the children back in lead-hazardous environments.

YOU CAN’T CONTROL HAZARDS IF YOU CAN’T GET INTO THE HOUSE

Sometimes ClearCorps found it difficult to help families, because the families refused to help ClearCorps.

Michael Robbins, who ran the first Baltimore lead-removal program, once told me: “We had an appointment set up. We got to the door, rang the bell, but somebody pulled the shades down. They didn’t let us in.”

On another occasion, ClearCorps was attempting to work with the large Somali immigrant population in Minnesota. During that period, however, Somalia was designated as a sponsor of terrorism. In Minneapolis, a Somali merchant was arrested and charged with funneling money to Osama bin Laden. After that, ClearCorps inspectors found it difficult to get into Somali homes, because entities connected with the U.S. Government were regarded with intense suspicion.

TWO-WAY RELATIONSHIPS ARE PREFERABLE TO ONE-WAY RELATIONSHIPS

The housing model of remediation is a one-way, one-directional relationship. A ClearCorps crew, a team of experts, would go into an area with at-risk homes. It would bring skill, knowledge, resources, and decision-making authority. It would offer to do all the work to make a unit safe, and it would provide for the family to be lodged in a lead-safe house while the work was being done.

There were benefits to that kind of top-down, salvation-from-above approach. Things got done. But perhaps more thought could have been put into how things seemed from the families’ point of view.

For instance, ClearCorps planners could have imagined what it would be like if somebody unknown—somebody not from their own community, somebody who didn’t look like them—came into their homes, and started telling them what they ought to do with their children, how they ought to protect them, and how they had better do it now. Would that seem a good way to gain cooperation and trust?

One-way relationships can have a dehumanizing effect. They can hurt people’s pride. I can speak to this myself: Once when I was a young father, cleaning leaves from my leaf gutters, I let my children up on the roof with me, under draconian supervision. Later that afternoon a social worker came to my door, because a neighbor had reported me as an irresponsible parent. I was put through set of interviews, to ascertain whether I was a fit guardian. I would bet that the parents of the children in some of these homes with lead paint feel the way I felt then.

BEHAVIOR CHANGE IS A PROCESS

When ClearCorps started out, many of its volunteers believed it sufficient simply to drop off information with families—that this would produce the appropriate responses. It didn’t take long before that approach was shown to be ineffective.

There are various reasons why people in all walks of life don’t do what they should do—even when they know they should do it. Sometimes it is in the nature of people just to procrastinate.

Some families would start the removal process with ClearCorps, but then they wouldn’t follow through. They needed reminding, coaxing, and nudging.

Sometimes a lien on a family’s property would pose a serious problem. ClearCorps couldn’t protect the children in such units unless it could help the parents get the lien off.

So ClearCorps had to train its volunteers to be sensitive to all those intangible, unpredictable, real-world dimensions. To be truly effective, its staffers could not operate simply as experts on lead paint. They had to become counselors, hand-holders, and financial consultants as well.

And they had to have a lot of patience. They had to learn that Rome is not made lead-free in a day—or sometimes even in a year or more.

CONCLUSION

Some people in the field say that the whole enterprise of lead-removal is simply an engineering problem. They’re wrong. For a program to be both respected and trusted, for it to have credibility, it must deal flexibly with families.

Lead cleanup should therefore be shifted from a housing-based model to a family-centered one. Rather than doing a lead hazard inspection for the family, we must do it with them. Rather than thinking about removing paint from homes, remediators should focus on helping families deal with the hazard.

After all, it’s the people we’re really concerned about—not the homes.

THE PUBLIC-POLICY FRAMEWORK
Andy Miller

INTRODUCTION

As someone involved with the lead-paint issue for many years, I am today increasingly frustrated that more has not been done by government to solve the problem. Only three states—Maryland, Wisconsin and Massachusetts—currently have effective legal frameworks to address the issue. In my view, we need comprehensive legislation. After explaining why we need it, I will present a mosaic of concepts which any such legislation must encode.

THE NEED FOR LEGISLATION

We need legislation because the current incentives are not sufficient to make landlords remediate. There is a problem with insurance coverage, which is difficult if not impossible to get in many instances. There is the potential for liability exposure, which causes many units to be abandoned, or put into shell corporations, to shield landlords from liability.

What should the purposes of the legislation be? Obviously the major purpose, or the ultimate goal, is to eliminate, as quickly as possible, childhood lead poisoning. But to achieve that end, we need to protect landlords from tort liability, if and only if they clean up their properties. We need to make insurance available to those landlords who do the right thing, should lawsuits be filed against them.

There also need to be state laws requiring landlords to defray the relocation costs and medical expenses of those who have been poisoned in their properties.

GIVING THE LAWS TEETH

One of the difficulties in solving such a multifaceted problem is that responsibility, both at the state and local levels, crosses agency lines. The only effective way to deal with that is to have an office, which is responsible for implementation of the state’s lead-removal program. The buck must stop somewhere, so that we don’t get the usual bureaucratic finger-pointing.

It’s also imperative that deadlines for action be established. In other words, if legislation is enacted, then steps have to be taken within one year, or three, as part of a comprehensive program. If we don’t have those deadlines, remediation will slow or stop. That’s just the nature of the bureaucratic beast.

INSPECTION, REMOVAL, AND TASKING

The whole issue of inspection is a difficult one. In many cases inspectors really aren’t certified to do this type of work. They don’t know what to look for. So inspectors must be certified. That, in my view, has to be mandatory.

In addition, the removal itself must be done by certified contractors. People who go into homes without knowing what they are doing will, in some instances, make the problems worse.

But even if we have inspection and contracting regimes in place—how are we going to know activity needs to be undertaken? How are we to parcel out the tasks?

Here it is essential to establish databases for housing constructed prior to 1978, when paint containing lead was effectively banned. That registration needs to be done at the local level, so that each locality has a list.

WHO PAYS—AND HOW?

If an individual owner undertakes to remove lead, the locality should consider some form tax credit, to provide an incentive.

Or, another possibility would be the establishment of a revolving loan fund. Owners with limited means could borrow against that fund to do the required work, and repay the money on a pre-established schedule. I think would be an effective use of public funds.

ENFORCEMENT IS IMPERATIVE

Finally, we need effective enforcement. In many localities nothing is to enforce civil fines or to impose criminal penalties.

Fortunately that’s not the case here in Maryland, where the city and state have begun to prosecute offending landlords. Since the year 2000, the state Department of the Environment and the Baltimore Health Department have taken 500 enforcement actions against landlords, including fines and renovation orders. Owners have finally begun sloughing lead from windows, doors and walls.

During the same period, the number of children statewide who tested positive for elevated lead dropped from 3,900 to 3,400. The trim line is very positive. That suggests to me where we, as communities, need to be headed in order to deal with this problem.

CONCLUSION

Ultimately, lead paint is a danger which must be addressed from a public-policy perspective. But an effective policy will demand more than merely the features I have outlined above. It will require public pressure where now there is public apathy, and energetic leadership where now there is sluggish bureaucracy. It will require more than three states to get involved. It will demand continuing national awareness, and continuing national effort, to what is a truly a continuing national problem. It will not be an easy task; it will be a daunting one, and perhaps policymakers will not know quite where to begin. I am hopeful, however, that those who are sincere about the safety of our children will find in these proceedings today at least the intellectual beginnings of policies which will put an end to this danger.

CONFESSIONS OF A LEAD-PAINT INSPECTOR
Daniel Chute

INTRODUCTION

I’m a service provider in environmental health and safety. I go out to collect the samples, and train other inspectors to detect the danger. In what follows I will describe about nature of the threat from lead, the inspection and work requirements, and how policy changes or new policies will likely to affect those of us in the field. Based on these observations I will recommendations improvements in the current safety-regime.

LEAD IS EVERYWHERE

From my perspective in science and measurement, there are many sources of lead in the environment. So although we focus on lead paint in housing, let’s not lose sight of the big picture.

When I think of lead exposure, I think of a lot of sources, with houses being possibly one of them. But also there are major exposures to lead in industrial areas.

If any of you drive along Interstate 95, you will pass by or under bridges, water towers, various steel structures with lead paint on them. In fact, when we go out and do air monitoring and soil testing, our worst readings are not in housing at all. It’s when we go out on a bridge painting or repair project that see sky-high exposure.

Also, I spent six years in ship-building and overhaul, and in that industry—due to the small confined spaces and compartments six-decks down—there are major exposures to lead.

A SMORGASBORD OF SERVICES

In any case, once a lead problem is identified, we must remove it. Who is going to scrub it down, who is going to take it away? That’s where the rubber meets the road. But there is a smorgasbord of other services that are required.

  • We need final inspectors, to verify that the action is complete and has met the specification.
  • We need training. Here in Maryland alone, state regulations require eight separate categories of training programs.
  • We need laboratory services. We will require paint-chip samples, TCLP samples, to know if the waste material is leaking lead.
  • We need medical services. Not just blood and urine testing, but secondary exams to approve respiratory protection, or give someone the okay to be sealed in a suit and to crawl through certain spaces.

Now let’s look at some of the applicable standards and specifications for all these services.

THE ISSUE OF THE MONTH

There has been no shortage of regulations that pertain to lead, on both a local and a national level. The shame of it is, although the regulations have proliferated, being in compliance with one regulation might put you at odds with another.

If you are abiding by the training requirements in the OSHA standard, you will not necessarily be in compliance with the training requirements that are in the federal lead-paint statute known as Title Ten. So you are really dancing through a minefield trying to get through some of these regulations. And as I work with folks in the different states including here and Maryland, I feel for them, because it can be very complicated.

To understand why these regulations are so complex we need to understand how they work in practice. I learned about this when the Federal Highway Administration was saying, “We’ve got to take care of the lead on our bridges, contain this waste, and dispose of it the right way.” But EPA said, “No, you cannot dispose of that.”

I was the mediator between these two agencies. We brought EPA a briefcase with a little science project: jars containing abrasive. “Here is clean abrasive. Here is dirty abrasive.” The EPA staffer who wrote the disposal regulation was sitting at the end of the table, and when we showed him the jars it was as if we were showing him moon rocks from the Smithsonian. “Man, this is cool.”

I pointed out that each bridge would have a dumpster full of the contaminated abrasive, and what the benefit was to the public health of removing it. The EPA staffer said, “You got a darned good point.” But when I asked him if he could change the regulation, he said, “I can’t do that. Lead-removal is the state’s job.” And yet, the state says that they will do it if the federal people make them do it. This has really been a challenge, to get different state transportation departments granted EPA waivers.

So it hasn’t been a consistent fix. I think the reason for that is that these regulations have emerged ad-hoc, in response to “the issue of the month.” When there is some kind of bad incident, when Peter Jennings publicizes a sad case, there is a knee-jerk response. These things are really not coordinated very well.

Consequently, if you are an attorney, a consultant, whatever, we have no shortage of billable hours, I assure you. But as far as productive action in the field, it’s a real challenge.

DANCING THROUGH A MAZE

We’ve got no real standardization. We don’t have a regular means of evaluating whether or not an inspector or worker is capable or qualified.

What we do have is a redundancy in training programs. People are required under regulations to take multiple training classes, but 80% or 90% of it the curriculum repeats these ideas; “Lead is a hazard. It’s highly pervasive in the environment. We must follow these steps.” The resources involved in redundant training could be better directed, in my opinion, toward really cleaning up problems in the field.

Maryland alone has eight categories for registration and certification of persons in lead disciplines. So if you are counting how many people go through the turnstile of getting lead training, the raw numbers are up. But on the other side of it, somebody who is in fact qualified might not be considered “qualified,” technically and legally, to actually go in and clean something up.

Also, there is a mandated division of labor which at times can be ridiculous. For instance, let’s say you are a well-intentioned landlord or renovation contractor, doing a rehab on an older housing unit, and you see that there is an old door. You know the property was built in 1920. So you figure it probably has lead paint. In order to say, “Yes that has lead paint,” you need to be an accredited inspector. But in order to prescribe a corrective action, you need to be a licensed risk assessor. In order to take the door off the hinges and knock off those three pins and wrap it in plastic, you have to be a licensed abatement person. And then in order to say, “Yes I did it,” you have to be licensed as a visual inspector.

So keep again, we must dance through this kind of maze.

RECOMMENDATION: TAP UNTAPPED EXPERTISE

Rather than artificially creating a diffuse web of redundant new certifications, let’s capture the expertise of the people who have been dealing with real environmental- and public-health issues for decades. Certified safety professionals and professional engineers have a long legacy of a highly respected and well-credentialed processes. These professionals are readily available and well equipped for these issues.

For instance, a certified industrial hygienist will address a wide variety of environmental health issues, including ventilation and toxicology, air sampling, proper testing. When anthrax spores were detected in federal office buildings, the first people on the scene were certified industrial hygienists. They were prescribing protective equipment, and training to the people who went into the sites. They were put to good use.

RECOMMENDATION: SIMPLIFY AND STANDARDIZE

If we have ten different certifications for each substance that comes along, we restrict the pool of people available for productive work. We should learn from the example of Maryland, was the first state to have a uniform and standardized training program for lead paint issues. Everybody sits in the same class—the engineers, the architect, the construction laborer, the superintendent, the owner. They talk to each other. Elsewhere, however, things are split and isolated between disciplines. If the various trainees don’t communicate before they get into the field, it’s tougher for them to do so when they are actually out there.

RECOMMENDATION: ENCOURAGE PRACTICAL INNOVATION

The traditional HUD abatement model as been, “We must prepare a design. We must get a formal inspection.” There has been about a one-year cycle to get a building clean, going by standard guidelines. It’s very cumbersome, and there’s no clear cost-benefit.

ClearCorps, on the other hand, has brought a great cost-benefit. Their numbers are amazing, when compared it to those yielded by the traditional abatement model. For 20% of the cost, ClearCorps takes care of 80% of the problem. My hat goes off to them.

CONCLUSION

Even if we do all the above things, and I hope we will, let’s try to always stay rational, calm and organized. Yes, lead poisoning is a crisis. We need to educate people about it; we must raise public awareness. But awareness and hysteria are not the same thing. In fact, they’re opposites.

If you look at the Wall Street Journal just before September 11, 2001, you’ll see that before there was anthrax, the health crisis of the month was ergonomics. Before that, a deadly black mold that was supposedly eating up homes, so New York City and California created mold-inspector accreditation programs. Meanwhile, we have some other public health issues out there, too—vermin, sanitation, carbon monoxide. And yes, lead.

We should learn from what has worked, what has been cost-effective in each of these cases—but also where we over-reacted, where we rushed in and wasted resources that could have been better applied to actually solving the problems.

LEGISLATION, NOT LAWSUITS
Don Gifford

INTRODUCTION

For me, as for many others, trying to solve the problem of lead poisoning has been a frustrating and often discouraging experience. Advocates for children, public health officials, and trial lawyers are locked in an endless and often fruitless struggle with landlords, insurance companies and paint companies. Meanwhile, for every two or three years of this stalemate, we are poisoning thousands of children.

This is a genuine crisis. Children with significantly elevated blood levels can become less intelligent, more prone to behavioral disorders, and can suffer injuries to their circulatory and digestive systems.

These children are not randomly distributed throughout our society. They are concentrated in certain geographical neighborhoods, certain social economic groups, certain ethnicities. They are most often inner-city, poor, African American or Latino.

Other public health crises in our country receive far more public attention, and many more public dollars. We have made a commitment to fighting diabetes, breast cancer and AIDS—and we don’t know how to prevent those diseases. But we do know how to prevent childhood lead poisoning.

The answer is not lawsuits, but legislation.

PAINT COMPANIES ARE UNFAIRLY BLAMED

Solving childhood lead paint poisoning requires lots of hard work. But ours is a culture of instant gratification, a culture which expects to wave a wand to make problems disappear. We are a culture which disregards personal responsibility, which always looks for someone to blame—especially a large, out-of-state corporation. We are a culture which expects courts to solve problems and establish rights.

Intoxicated by the billions of dollars paid in tobacco settlements, states like Rhode Island, and cities like Newark, Milwaukee, St. Louis, and Chicago, have sued the manufacturers of lead pigment.

So let’s compare these cases to those against the manufacturers of cigarettes. Whether or not tobacco companies should have been forced to pay billions is a contentious question. But just for purposes of argument, let’s assume that the liability of the tobacco companies was fairly assessed. Does that mean that manufacturers of lead paint should targeted, too—as so many lawyers propose?

I would argue that it does not, because there are vital differences between the cases. Consider:

  1. Cigarettes are still sold and still marketed today. But since 1978, paint containing lead has not been sold at all for interior, residential purposes.
  2. The tobacco industry concealed from the public the full extent the risks of its product, and juries returned verdicts on that basis. But there is no credible evidence of misrepresentation or concealment by paint manufacturers.
  3. We know which companies manufactured the cigarettes that cancer patients smoked. A plaintiff’s widow gets on the stand and says her dead husband smoked Lucky Strikes for 40 years. But there is no way to tell who manufactured the paint on the walls of an apartment that is poisoning a child. A Duke law professor and former solicitor general under President Bill Clinton has repeatedly testified that any attempt to hold manufacturers liable for paint sold even 100 years ago—when we can’t identify what pigment and what paint is causing the harm—would violate the due-process clause of the United States Constitution.
  4. You cannot smoke cigarettes safely. But well-maintained lead paint does not cause childhood lead poisoning. It is deteriorated lead paint, poorly maintained lead paint, or the dust that occurs during renovation, when proper precautions are not taken, that is dangerous.

THE LANDLORDS’ WORST NIGHTMARE

Some landlords and property owners have welcomed legal actions against paint manufacturers, seeing in them a way of avoiding remediating costs to themselves. But I predict that lawsuits against manufacturers will turn out to be the landlords’ worst nightmare.

Look at what is happening already in the Rhode Island litigation. The discovery in that case suggests that what the paint manufacturers intend to bring 10,000 private property owners into the suit, as third-party defendants. If the case against the manufacturers is dismissed, property owners will be left there as defendants to hold the bag.

The critical point is this: The plaintiff’s lawyers who file these suits are not interested in the most efficient, cost effective solution. They are interested in money, of about which only 40 cents on the dollar will be delivered to the injured claimants. Meanwhile, because of the way the legal system works, because of the way liability effects insurance premiums, and so on, the cost of litigation is going to raise the cost of remediation, to the landlords, from $2,500.00 to perhaps $50,000.00 per house. That’s going to lead to a whole lot more abandonment of rental property in cities.

And in the end, there will be no recovery, no benefit to the states, no benefit to the poisoned children,—and no benefit to the landlords.

SIX KEYS TO A SOLUTION

What we need is not more lawsuits, but refined controls, improved government regulations, along the lines of those encoded in the 1994 Maryland legislation.

Now, one might object: If the Maryland law is the way to go, why have we not yet eliminated lead poisoning in Maryland?

The answer is that laws have to be enforced. For six years after the Maryland statute went on the books, it went virtually unenforced. Since it’s been enforced, beginning last year, we’ve made discernable progress. And if other states, or if either houses of our Congress, pass and enforce laws which mandate the following six actions, the rest of the country will see progress, too.

  1. Comprehensive Testing. We must test all children living in units built before 1978. If we can inoculate for DPT, we can test for childhood lead poisoning.
  2. Take Interim Measures. We must enact and enforce, at the state and local level, statutes and ordinances mandating property owners to take cost-effective interim measures. To the landlords I say: “Save $15,000.00. Repair. Don’t abate.”
  3. Target the Hotbeds. We must focus on those neighborhoods and those apartment complexes that are the most poisonous. We must destroy the Tora Boras of childhood lead poisoning.
  4. Build Public-Private Partnerships. If we enforce the laws, we will create an expanded market for lead-removal services. We will then see a flourishing market in private contractors offering those services. But we will also need to continue building public-private partnerships, supporting ClearCorps, and encouraging community groups and churches—anyone and everyone who will to do the house-by-house, family-by-family work.
  5. Teach People about the Dangers. We must better educate parents and property owners. If we spent as much on educating people about lead safety as about safe sex, we would be halfway there.
  6. Allocate Sufficient Public Funds. To some, the idea of “throwing money at a problem” is always the wrong answer. But carried to its logical ultimate, this objection would mean no government spending, and hence no government at all. I say, it depends what the problem is, and what you mean by “throwing.”

If we have accepted the legitimacy of federal funding for research on diabetes, breast cancer, and AIDS, then it is hard to see why we should exclude assistance—federal aid, or tax credits, or zero-interest loans—to property owners who want to make their premises safe.

CONCLUSION

In the end there is one question which should haunt all conscientious citizens. What is the impact, on our identity as a nation, of doing less than we know how to do, to eradicate a disease that devastates children who are predominately African American and Latino?

Many of those who appear to care most about these children are pursuing dead ends, playing the blame game. Yet we know how to solve the problem at a cost that, if not trivial, is certainly less expensive than the road through the court system, with all its hidden toll-booths.

If we don’t solve the problem by statute, we will live through a litigation nightmare, and the children will not be winners. But if we do pass the right laws, and enforce them, we will have much as a country to be proud of. Perhaps eliminating childhood lead poison might not rank right up there with eliminating smallpox, as we thought we had done twenty years ago. But what a feat it would be to eliminate this poison from the lives of those children who are already at greatest disadvantage.

THE CONTRIBUTORS

RANDY LUTTER, Resident Scholar at the American Enterprise Institute in Washington, D.C., specializes in health-, safety-, and environmental-regulations. He was a Staff Economist for the Office of Management and Budget, from 1991 through 1997, and was a Senior Economist on the President’s Council of Economic Advisors in 1998.

JAMES PRICE helped develop the Community Lead Education and Reduction Corporation, known for short as ClearCorps, which is housed at the Shriver Center in Baltimore.

ANDY MILLER, a partner at Dickstein, Shapiro, Morin and Oshinsky, was Attorney General in the State of Virginia for two terms.

DAN CHUTE has nearly twenty-five years of professional experience in industrial hygiene safety and environmental health, through his work in government, industry, construction and consulting.

DON GIFFORD chaired the Maryland Lead Paint Poisoning Commission.

 


Center for Legal Policy.

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CENTER FOR LEGAL POLICY FORUM

The Manhattan Institute convened five experts on lead paint hazards in Baltimore, Md. to discuss the viability of current efforts and suggest new strategies for public-private ventures aimed at lead remediation.

CONTENTS:

EXECUTIVE SUMMARY

TWO BAD REMEDIES, AND ONE GOOD SOLUTION | Randy Lutter

LIMITS TO A HOUSING-BASED MODEL | James Price

THE PUBLIC-POLICY FRAMEWORK | Andy Miller

CONFESSIONS OF A LEAD-PAINT INSPECTOR | Daniel Chute

LEGISLATION, NOT LAWSUITS | Don Gifford

ABOUT THE CONTRIBUTORS


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