On February 10, 2022, NJCJI President Anthony Anastasio testified before the Senate Environmental and Energy Committee on Senate Bill 1005, which seeks to transform the tort of public nuisance in the context of hazardous lead paint. While this was the first time S1005 has come up for a committee hearing this session, its predecessor, S697, was up for committee hearings three times during the last legislative session. S1005 constitutes a radical swing in legal theory away from the rule of law and toward unrestrained confiscation by the State.

Since the early 1970s, New Jersey has been proactive in establishing a comprehensive legislative and regulatory regime to combat the hazards of lead paint. However, some New Jersey municipalities with deteriorating housing stock lack sufficient resources to address lead paint hazards. As a result, in the early 2000s, a group of municipalities sued a group of paint manufacturers for money damages under a theory of public nuisance, which is rooted in tort. In 2007, in In re Lead Paint Litigation, 191 N.J. 405 (2007), the New Jersey Supreme Court rejected the municipal plaintiffs’ use of public nuisance as a vehicle for a massive payday. The Court concluded that the municipal plaintiffs failed to meet all of the elements of the tort of public nuisance and, therefore, could not sustain a cause of actions for damages.

Now, S1005 would undo the Court’s ruling. If passed, the proposed legislation will completely defy the traditional understanding of the tort of public nuisance by removing 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 identify the presence of lead paint anywhere in the State and demand payment from manufacturers, despite the fact that manufacturers stopped making lead paint decades ago. This would present significant constitutional issues and is fundamentally unfair, as well as sets a dangerous precedent for applying a faux public nuisance doctrine to other contexts.

NJCJI President Anthony Anastasio testified alongside Ray Cantor, Esq. (Vice President for Government Affairs at the New Jersey Business and Industry Association) and Tony Diaz, Esq. (Partner, Jones Day on behalf of Sherwin-Williams). Anthony began by discussing the legal defects of the bill and how it completely upends the traditional tort of public nuisance. He noted that the bill would gut all of the essential elements of the common law tort of public nuisance and transform it into a license for the State to simply confiscate money from the paint manufacturers on a never-ending basis. Mr. Cantor said that the bill sends a message that manufacturers can do everything right at the time a product is made and then be held liable fifty years later for a product that was once legitimately sold and used. Finally, Mr. Cantor noted to the Committee that New Jersey is regularly recognized as an inhospitable habitat for business and industry, and this bill does New Jersey’s reputation and business community no favors. Mr. Diaz concluded by providing some brief history on lead paint hazards and then discussing a new law passed last session that provides a workable solution to this problem and does not undermine the rule of law.

Nevertheless, the Committee voted along party lines to release the bill without revising its obvious legal defects. At the end of the vote, the Committee Chair encouraged interested groups with proposed changes and concerns to discuss them with the bill’s sponsor, Senator M. Teresa Ruiz and, for the identical Assembly Bill, A659, Assemblymen Anthony S. Verrelli, Robert J. Karabinchak, and Raj Mukherji.

Listen to Anthony’s testimony here, starting at 1:42:45.

Read Anthony’s written testimony here