The U.S. Supreme Court is planning to decide this month whether it will hear a case that has started a seismic shift in how local governments look to fund their efforts to address pollution and other public health risks. This case, which deals with removing lead paint from homes, may not dominate national headlines the way nominations do, but it has been the source of intense debate in the legal and business communities for nearly two decades. In short, can local governments make businesses pay for the clean-up of downstream hazards associated with their products even when the companies did not cause the harms?
This case, submitted to the Supreme Court by Sherwin Williams and ConAgra, as well as others like it, are challenging for progressives. On one hand, the allure for environmentalists and social activists of dealing with a hazard without relying on government appropriations is understandable. But, subjecting someone to liability without fault or causation – which do not exist in these cases – violates the core progressive legal philosophy of standing up for one’s constitutional rights. To be clear, companies in these cases lawfully made and sold non-defective products. The lawsuits are solely over downstream hazards that often occurred years after the products were sold.
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