AFL-CIO v. Deukmejian

212 Cal. App. 3d 425, 260 Cal. Rptr. 479, 14 OSHC (BNA) 1132, 1989 Cal. App. LEXIS 740
CourtCalifornia Court of Appeal
DecidedJuly 20, 1989
DocketC002364
StatusPublished
Cited by25 cases

This text of 212 Cal. App. 3d 425 (AFL-CIO v. Deukmejian) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
AFL-CIO v. Deukmejian, 212 Cal. App. 3d 425, 260 Cal. Rptr. 479, 14 OSHC (BNA) 1132, 1989 Cal. App. LEXIS 740 (Cal. Ct. App. 1989).

Opinion

Opinion

PUGLIA, P. J.

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 3 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 *430 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 démurrer 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.]” (Italics 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.” (22 Cal.3d at p. 228.) 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:

*431 “(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. (§ 25249.10, subd. (b).) Violators of either provision are subject to civil penalties of $2,500 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 are 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 *432

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Cite This Page — Counsel Stack

Bluebook (online)
212 Cal. App. 3d 425, 260 Cal. Rptr. 479, 14 OSHC (BNA) 1132, 1989 Cal. App. LEXIS 740, Counsel Stack Legal Research, https://law.counselstack.com/opinion/afl-cio-v-deukmejian-calctapp-1989.