AFL-CIO v. Deukmejian

• Citation: 212 Cal.App.3d 425,260 Cal.Rptr. 479
• Decision Date: 20 July 1989
• Docket Number: AFL-CIO,No. C002364,C002364
• Court: California Court of Appeals
• Parties: , 14 O.S.H. Cas. (BNA) 1132 , et al., Plaintiffs and Respondents, v. George DEUKMEJIAN, as Governor, etc., Defendant and Appellant.

Page 479

260 Cal.Rptr. 479

212 Cal.App.3d 425, 14 O.S.H. Cas. (BNA) 1132

AFL-CIO, et al., Plaintiffs and Respondents, v. George DEUKMEJIAN, as Governor, etc., Defendant and Appellant.

No. C002364.

Court of Appeal, Third District, California.

July 20, 1989.

Vance W. Raye, Robert D. Tousignant, Sacramento, and Peter A. Baldridge, Office of Legal Affairs, for defendant and appellant.

Vaughn R. Walker, Michele B. Corash, Kevin M. Fong and Michael J. Steel, Pillsbury, Madison & Sutro, San Francisco, amicus curiae for defendant and appellant.

Albert H. Meyerhoff, Natural Resources Defense Council, David B. Roe, Environmental Defense Fund, Berkeley, Stephen P. Berzon and Gay C. Danforth, Altshuler & Berzon, San Francisco, Laurence Gold, Ralph Santiago Abascal, California Rural Legal Assistance, San Francisco, for plaintiffs and respondents.

PUGLIA, Presiding Justice.

This appeal arises out of Proposition 65, an initiative adopted at the November 1986 general election. The initiative, designed to protect the people and their water supply from harmful chemicals, added sections 25249.5-25249.13 to the Health and Safety Code (hereafter all statutory references to sections of an unspecified code are to this code.) Section 25249.8, subdivision (a) requires the Governor, on or before March 1, 1987, to publish a list of "chemicals known to the state to cause cancer or reproductive toxicity." The list must include "at a minimum" those substances identified by reference in Labor Code section 6382, subdivisions (b)(1) and (d). The issue in this case involves the required content of that list.

Pursuant to subdivision (a) of section 25249.8, Governor Deukmejian caused to be published a list of chemicals. The list consisted of 26 known human carcinogens and three known human reproductive toxins identified by reference in Labor Code section 6382, subdivisions (b)(1) and (d). Thereafter, plaintiffs, a group of taxpayers concerned with the environment, filed in superior court their petition for writ of mandate and complaint for injunctive relief (complaint). In count one of their complaint plaintiffs sought to compel the Governor (defendant) to include on the list not only known human but also known animal carcinogens and reproductive toxins referred to in Labor Code section 6382, subdivisions (b)(1) and (d). Plaintiffs alleged defendant had a ministerial duty to place these chemicals, over 200 in all, on the list required by section 25249.8, subdivision (a) to be published "on or before March 1, 1987" (hereafter "initial list").

Defendant demurred to the complaint, claiming it failed to state facts sufficient to constitute a cause of action, specifically, that neither mandamus nor injunction lay to compel the exercise of discretion in a certain manner, and furthermore that Proposition 65 requires only known human carcinogens and reproductive toxins to be listed.

The trial court overruled the demurrer and in response to plaintiffs' motion for preliminary injunctive relief on count one of the complaint, issued a preliminary injunction enjoining defendant from failing forthwith to publish a list of substances that includes, at minimum, the known human and animal carcinogens identified by reference in Labor Code section 6382, subdivisions (b)(1) and (d). Defendant appeals. We shall affirm. ¹

" '[T]he initiative is in essence a legislative battering ram which may be used to tear through the exasperating tangle of the traditional legislative procedure and strike directly toward the desired end. Virtually every type of interest-group has on occasion used this instrument. It is deficient as a means of legislation in that it permits very little balancing of interests or compromise, but it was designed primarily for use in situations where the ordinary machinery of legislation had utterly failed in this respect....' [Citation.]" (Emphasis in original; Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 228, 149 Cal.Rptr. 239, 583 P.2d 1281.)

Whether Proposition 65 may aptly be described as "a legislative battering ram," it does "strike directly toward the desired end." (Ibid.) The initiative, entitled the "Safe Drinking Water and Toxic Enforcement Act of 1986" (hereinafter "Act" or "Proposition 65"), imposes severe penalties upon those who contaminate drinking water with carcinogenic and toxic chemicals and who expose individuals to such chemicals without warning. Section 1 of the preamble of the Act recites:

"The people of California find that hazardous chemicals pose a serious potential threat to their health and well-being, that state government agencies have failed to provide them with adequate protection, and that these failures have been serious enough to lead to investigations by federal agencies of the administration of California's toxic protection programs...."

To deal with the potential threat from hazardous chemicals, the Act declares the rights of the people:

"(a) To protect themselves and the water they drink against the chemicals that cause cancer, birth defects, or other reproductive harm.

"(b) To be informed about exposures to chemicals that cause cancer, birth defects, or other reproductive harm.

"(c) To secure strict enforcement of the laws controlling hazardous chemicals and deter actions that threaten public health and safety.

"(d) To shift the cost of hazardous waste cleanups more onto offenders and less onto law-abiding taxpayers."

There are two major operative provisions in Proposition 65. The first prohibits any person in the course of doing business from knowingly discharging or releasing to a source of drinking water any chemical known to the state to cause cancer or reproductive toxicity. ( § 25249.5.) This prohibition becomes effective 20 months after the chemical has been identified and listed as one known to the state to cause cancer or reproductive toxicity. ( § 25249.9, subd. (a).) The second major operative provision prohibits any person in the course of doing business from knowingly and intentionally exposing, without prior clear and reasonable warning, any individual to any chemical known to the state to cause cancer or reproductive toxicity. ( § 25249.6.) This prohibition becomes effective 12 months after the chemical has been identified and listed as one known to the state to cause cancer or reproductive toxicity. ( § 24249.10, subd. (b).) Violators of either provision are subject to civil penalties of $2500 per day for each violation. ( § 25249.7, subd. (b).)

The Act applies only to those chemicals that have been identified and listed as chemicals "known to the state to cause cancer or reproductive toxicity." ( § 25249.5.) The identification and listing of such chemicals is pivotal to the entire statutory scheme. Section 25249.8, which provides the mechanism for determining the contents of that list, is at the center of this dispute. We quote section 25249.8 in relevant part:

"(a) On or before March 1, 1987, the Governor shall cause to be published a list of those chemicals known to the state to cause cancer or reproductive toxicity within the meaning of this chapter, and he shall cause such list to be revised and republished in light of additional knowledge at least once per year thereafter. Such list shall include at a minimum those substances identified by reference in Labor Code Section 6382(b)(1) and those substances identified additionally by reference in Labor Code Section 6382(d).

"(b) A chemical is known to the state to cause cancer or reproductive toxicity within the meaning of this chapter if in the opinion of the state's qualified experts it has been clearly shown through scientifically valid testing according to generally accepted principles to cause cancer or reproductive toxicity, or if a body considered to be authoritative by such experts has formally identified it as causing cancer or reproductive toxicity, or if an agency of the state or federal government has formally required it to be labeled or identified as causing cancer or reproductive toxicity.

"(c) On or before January 1, 1989, and at least once per year thereafter, the Governor shall cause to be published a separate list of those chemicals that at the time of publication are required by state or federal law to have been tested for potential to cause cancer or reproductive toxicity but that the state's qualified experts have not found to have been adequately tested as required.

"(d) The Governor shall identify and consult with the state's qualified experts as necessary to carry out his duties under this section."

Defendant issued the initial list pursuant to section 25249.8, subdivision (a) on February 27, 1987. As we have noted, it consisted of 26 chemicals known to cause cancer in humans and 3 chemicals known to cause reproductive toxicity in humans. At the same time, defendant issued a candidate list of "probable" human carcinogens identified by reference in Labor Code section 6382, subdivisions (b)(1) and (d). According to a public statement issued concurrently by the Secretary of the State Health and Welfare Agency, the lead agency designated to implement the provisions of the Act ( § 25249.12), "This total of 29 chemicals [on the initial list] represents ALL the known human carcinogens listed by the World Health Organization's International Agency for Research on Cancer (IARC) and the U.S. Public Health Service's National Toxicology Program (NTP). It also includes ALL known human reproductive toxicants as listed by the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA)." (Emphasis in original.)

In his public statement the Secretary also announced the formation of the Safe Drinking Water and Toxic Enforcement Act Scientific Advisory Panel (Panel) to assist the Governor in carrying out his responsibilities under the Act in "consult[ation] with the state's qualified experts as necessary...." ( § 25249.8, subd. (d).)...