hey guess what

The question is how society should address that harm. One choice is to ignore it (the “screw the children” theory). Another choice is to have society pay for it (taxes, taxes, taxes). Another choice is to have the current owners pay for it (again, taxes, as government is the owner of much of the problem inventory and private owners will just abandon property). The final choice is to have the manufacturers pay for it (disgorge profits).

I think there are legitimate arguments to be made for each of the choices. My thinking is that the taxpayer should not be liable for the external costs of environmental pollution. I think this is a tough societal issue, generally. However, I think the answer should be, to the extent possible, “you polluted, you pay.”

Knowing that exposure to high levels of Lead in the manufacturing process is dangerous is a very different thing than knowing that the end product is also dangerous. Farmers know that pesticide is dangerous but can be safely used (at least that is what the USDA currently says, who knows when we will decide to start picking the next pocket). CO2 is poisonous and can be dangerous to would with but is used almost everywhere. Should manufacturers avoid it just in case it will someday be found dangerous in the end products? How can the insure against liability when there no idea what it will be or what the legal system will look like when it comes up?

Also, I cannot remember ever seeing a paint that claimed to last forever. Even the ‘lifetime’ warranty” only would last about 50 years.

And I felt your criticism of the manufacture’s lobbying ignored the same being done by the tort lawyers now profiting from the litigation. Of course, the lawyers took the long view and set up the system so that they would train the folks responsible for later paying them, the judges.

In many ways, this seems like we are punishing the company for actions that were perfectly legal AND acceptable at the time. The modern theories of liability did not exist at the time of the defendants actions. So while no specific law was passed to punish them, the are being punished by changes in the law. It might not be ‘ex post facto’ but it has that feel to this non-lawyer.

The government may well have been in the pocket of the manufacturers. It is very unlikely that the goverment (at least pre-Nader and pre-environmental laws) did anything to discourage this product.

If the argument is that the government was in the pocket of the companies, then let’s save everyone the time and effort and just eliminate that part of the government as it seems not to serve any purpose.

If the argument is that the government failed to do its job and protect the people, then let’s eliminate that part of the government.

I know that sounds drastic but the scenario you are setting up and subscribing to seems to be one where the manufacture of a product gets no benefit or protection from government approval and / or the public gets not benefit or protection from government approval.

Lacking purpose, benefits of accountability, why have that department in the government at all?

Can’t we just shut the doors, save the money and move on down the road?

Mr. Hardy acknowledges that, more than 100 years ago, the industry knew lead paint was dangerous. His defense to the lawsuit is that we do not know for sure that the lead paint is causing the damage to children, as opposed to another cause. I think causation and actual damages are debateable. That the paint manufacturers knew their product was toxic is not debateable.

To me, the question is not whether those companies should disgorge their profits, but how much of the profits they disgorge.

Saying that the government was promoting their product does not advance their cause. The government may well have been in the pocket of the manufacturers. It is very unlikely that the goverment (at least pre-Nader and pre-environmental laws) did anything to discourage this product.

The issue is not whether the paint manufacturers should pay for at least some of the abatement. The issue is how much they should pay.

Finally, as for how long the paint would last, I would suggest that the manufacturers overestimated the lifespan of their paint. Heck, even today manufacturers are claiming their paints will last forever.

I think David’s brake analogy is spot on because of the point you make – both the brakes and the painted surfaces require maintenance to ensure optimum performance.

That being said, I am not sure that I see going solely after the makers of the paint for something they sold that was legal at the time.

You wrote: My answer is that the polluters should be forced to disgorge their profits, then the taxpayers should take over.

My response would be from what point in time would you ask they disgorge their profits? The profits a company is making now? The profits they made from the sale of the paint at the time? Both? As the government profited from the sale of the paint as well, why should they be left out of the equation until all other private funds are exhausted?

By that I mean if we hold the paint companies accountable for their product, should not the government who certified the products as being safe and enriched themselves be held accountable too?

Since the government seeks to interfere within the marketplace (and benefit from that interference) should they also not be held accountable?

If a company can essentially be sued out of existence because of legal actions, should not the government department that ruled those actions legal be held to the same standard? Should not the department’s budget be open to the same taking as that of a private company?

In other words, in the real world if I rely on the advice of an expert such as an engineer to build a building and the building collapses, both I and the engineer are held accountable.

However, if I rely on the government to certify a product and that product “goes south,” only I am held accountable.

In a utopian world, I see that as a double standard.

I’m sorry, but you’re going into fantasy land in asserting that paint lasts (or should last) forever. No paint seller would make such an assertion and I challenge you to cite evidence that lead paint (or for that matter, any paint no matter the formula) manufacturers made such a claim.

Anyone who is a home owner or has ever lived in an owned home knows that painting is one of those tasks that must happen on a regular basis. Some of us are smart enough to choose exteriors (for example) with minimal paint (cough, cough – vinyl siding in my case). But that doesn’t mean my home is paint free – nay…..the door surrounds, garage door, etc need to be painted every 5-10 years or so, and the interior while having longer stretches between paintings, has been done just recently – there were sufficient chips, dings and flakes over time, plus the general grunge of years of use.

Allan, your argument fails on a common sense / common knowledge basis. Everyone knows paint doesn’t last forever and that it must be maintained / touched up / replaced / repainted on a regular basis. Arguing otherwise is ridiculous on its face. Try a different tact if you persist in the claim that lead paint is inherently defective (since it doesn’t last forever in your construction – by that definition, ALL paint is defective since none of it lasts forever.)

I don’t think your analogy works. Brakes are supposed to go out and be replaced when they go bad. Not necessarilly so with paint. Do you think that paint sellers told their clients “hey, this paint won’t last long, so you have to replace it”? Probably not. Most likely, they claimed that their paint would last a long time, if not forever. It was likely a huge selling point.

I think this might be more like selling Coca Cola at the end of the 19th century with cocaine in it. The sellers said that it was good for the consumer, but it turned out not to be so.

But the question still remains. Assuming that paint sellers should not pay. And assuming that the (non-government) owners of buildings with lead pain would rather abandon them than remediate them. Who should pay for remediation?

I guess this is the same question as goes with oil plumes. Or with air pollution. Or with other environmental problems caused by products or actions that turned out to be really bad for the environment. Should companies who were doing nothing wrong at the time of pollution be forced to clean up their mess, or should the taxpayers bear the burden? My answer is that the polluters should be forced to disgorge their profits, then the taxpayers should take over. I don’t know how to get there, but, to me, it is the fairest result.