People ex rel. Lungren v. Superior Court
| Decision Date | 12 June 1995 |
| Docket Number | No. A065913,A065913 |
| Citation | 35 Cal.App.4th 1177,41 Cal.Rptr.2d 903 |
| Parties | Previously published at 35 Cal.App.4th 1177, 40 Cal.App.4th 64, 44 Cal.App.4th 972, 48 Cal.App.4th 1452 35 Cal.App.4th 1177, 40 Cal.App.4th 64, 44 Cal.App.4th 972, 48 Cal.App.4th 1452 The PEOPLE ex rel. Daniel E. LUNGREN, as Attorney General, etc., Petitioners, v. SUPERIOR COURT of the City and County of San Francisco, Respondent; AMERICAN STANDARD, INC., et al. Real Parties in Interest. |
| Court | California Court of Appeals Court of Appeals |
The Safe Drinking Water and Toxic Enforcement Act of 1986 (Health & Saf.Code, §§ 25249.5-25249.13), 1 adopted by vote of the people at the November 1986 election as Proposition 65 (), provides in material part that "[n]o person in the course of doing business shall knowingly discharge or release a chemical known to the state to cause cancer or reproductive toxicity into water or onto or into land where such chemical passes or probably will pass into any source of drinking water...." (§ 25249.5.) This case requires us to define what is meant by the phrase "source of drinking water."
Acting by and through the Attorney General, plaintiffs filed an action in superior court alleging that defendants have violated Proposition 65, in that each knowingly discharged or released a proscribed chemical into a source of drinking water.
The 16 named defendants manufacture and distribute the majority of drinking water faucets sold and used in California. Lead, which is among the substances listed by the state as known to cause cancer or reproductive toxicity within the meaning of Proposition 65 (see § 25249.8; 22 Cal.Code of Regs., § 12000), is assertedly contained in many of the faucets defendants produce and leaches into the tapwater that passes through these fixtures. Defendants demurred to the first and second causes of action, 2 arguing that The trial court sustained the demurrer to the first two causes of action, determining that "residential water faucets and the water within them are not 'sources of drinking water.' " Although the trial court sustained the demurrer with leave to amend, plaintiffs contend it is not possible to amend the complaint within the constraints of the trial court's order. After the Attorney General sought a writ of mandate from this court, we issued an order directing defendants, as real parties in interest, to show cause why a peremptory writ of mandate should not issue directing the superior court to vacate the order sustaining the demurrer and to enter an order overruling the demurrer and compelling defendants to answer the complaint.
household drinking water is not a "source of drinking water" within the meaning of the statute, and that plaintiffs had therefore failed to allege facts constituting a cause of action.
(Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125, 271 Cal.Rptr. 146, 793 P.2d 479.) We are not bound by the construction of the pleading determined by the trial court but must make our own independent determination, even as to matters not expressly ruled on by the trial court. (Marina Tenants Assn. v. Deauville Marina Development Court (1986) 181 Cal.App.3d 122, 127, 226 Cal.Rptr. 321.)
Although they both appeal to "common sense," the parties advance sharply conflicting views as to what is meant by the phrase "source of drinking water." According to the Attorney General, "[t]he common sense meaning" of the phrase ... The Attorney General suggests that if the faucets from which almost everyone obtains drinking water are exempted from the discharge prohibition, this critical provision of Proposition 65 can be rendered ineffectual.
Defendants answer that the Attorney General's view "has nothing to do with common sense, and is at odds with the plain language of the Act and basic rules of statutory construction." According to defendants, "source of drinking water" refers to "California's lakes, rivers, streams and ground waters," not faucets. Defendants insist that "[t]apwater is not a 'source of drinking water,' it is drinking water," and that the Attorney General has read the word "source" out of the statute.
We look first to the language of the Act itself to discern the meaning of the words in question. "Source of drinking water" is defined in section 25249.11, subdivision (d), as "either a present source of drinking water or water which is identified or designated in a water quality control plan adopted by a regional board as being suitable for domestic or municipal uses." (Emphasis added.) Unfortunately, this definition does not resolve the issue with which we are presented.
Emphasizing the either/or aspect of the definition, the Attorney General argues that a "present source of water" is different from Defendants argue that the first phrase of subdivision (d) of section 25249.11 () must be read in conjunction with the second phrase (water "identified ... in a water quality control plan"). The distinction between the two is only temporal, they say, because both address the same type of "source," namely, the surface and groundwaters of the state, as distinguished from tapwater.
water "identified or designated in a water quality control plan." While the latter category refers to bodies of water physically located in the natural environment and in specified man-made facilities which are regulated by regional water quality control boards 3--the Attorney General contends this reference was made simply to insure application of Proposition 65 to future sources of drinking water, not for the purpose of limiting its present application to such physical bodies of water. Thus, the Attorney General concludes, the statutory definition is fully consistent with his "common sense" view that a faucet is a present source of drinking water within the meaning of Proposition 65
The trial court agreed with defendants that "residential water faucets and the water within them are not 'sources of drinking water' " within the meaning of the Act. Adopting defendants' reasoning, the court stated that the first definition of "source of drinking water" set forth in section 25249.11, subdivision (d) () must be qualified by the second (i.e., "water which is identified or designated in a water quality control plan adopted by a regional board as being suitable for domestic or municipal uses"), because "[i]f the 'present source' definition stands alone and unqualified, it simply creates a tautology." The question the trial court thought presented for decision was "whether a faucet is within the scope of or sufficiently similar to those waters within a regional [water quality control] board's jurisdiction."
We reject the Attorney General's position that a faucet is a present source of drinking water under the Act. His analysis would neologize the word "source"--indeed, it would virtually excise it from the Act. We conclude the unambiguous, straight-forward language of the Act, its history and the implementing regulations make it clear that section 25249.5 is limited to prohibiting the discharge or release of listed chemicals into California lakes, rivers, streams, ground waters, and man-made storage facilities and aqueducts--the origins of drinking water. 4
In reaching this conclusion, we do not dispute the claim that there may be sound scientific reasons to ban and ultimately eliminate brass fixtures from household and public accommodation water supply systems, as the amicus brief for both the Alliance to End Childhood Lead Poisoning and the American Public Health Association contend. Rather, we simply conclude that Proposition 65 did not do so and that a decision of such magnitude must come from the electorate or the Legislature. We note in passing that incremental approaches to far-reaching social policy enactments are a common legislative practice. It is noteworthy that the Act includes a specific provision allowing the Legislature, by two-thirds vote, to amend it to "further its...
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People ex rel. Lungren v. San Francisco County Superior Court (American Standard, Inc.)
...STANDARD, INC., et al., Real Parties in Interest. No. S047833. Supreme Court of California. Sept. 14, 1995. Prior report: Cal.App., 41 Cal.Rptr.2d 903. The petition for review GRANTED. The petition for review filed by the Natural Resources Defense Council et al. is denied without prejudice ......