People ex rel. Lungren v. Superior Court

The Safe Drinking Water and Toxic Enforcement Act of 1986 (Health & Saf. Code, §§ 25249.5-25249.13), 1 adopted by the people at the November 4, 1986, General Election as Proposition 65 (hereinafter referred to as the Act or 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.” The Attorney General, who brought this action to enforce the Act, contends that the phrase includes the water that is stored in or run through water faucets, and so defendant faucet manufacturers, whose products allegedly leach toxic chemicals into drinking water, may be sued for violations of the Act. The faucet manufacturers contend the contrary.

*299 We conclude that, in light of both the Act’s language and its purpose, the Attorney General is correct in construing it to prohibit the discharge of toxic chemicals into faucet water.…

The health dangers of lead in water faucets are significant, but I cannot join the majority’s tortured effort to endorse Proposition 65, the Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65), as a weapon for attacking the problem. Though Proposition 65 includes landmark protections against environmental pollution of drinkable surface and groundwaters, it does not purport to address all means by which contaminants may appear in water drawn from the tap. When fairly considered in context, neither the language of Proposition 65 (Health & Saf. Code, §§ 25249.5-25249.13) 1 nor its interpretive aids support the majority’s conclusion that the chemical transfer of lead from water faucets into tap water is a “discharge or release” of toxin into a “source of drinking water” covered by the statute.

Both the trial court and the Court of Appeal determined, contrary to the majority in this court, that water faucets are not a “source of drinking water” governed by Proposition 65. Because I agree with their conclusions in this regard, I respectfully dissent.

When construing Proposition 65, we must keep several things in mind. First, it was adopted not by the considered…