Brown

I. Introduction

In November 1986, California voters approved Proposition 65, an initiative that enacted the Safe Drinking Water and Toxic Enforcement Act of 1986, now set forth in Health and Safety Code section 25249.5 et seq. (Proposition 65). 1 A key provision of Proposition 65 is its mandate that the Governor publish “a list of those chemicals known to the state to cause cancer or reproductive toxicity.” (§ 25249.8, subd. (a).) This list is “to be revised and republished in light of additional knowledge at least once per year” (ibid.) and is commonly referred to as the “Proposition 65 list.”

This case concerns the methods by which the list can be updated, and specifically whether the Office of Environmental Health Hazard Assessment (OEHHA) can add chemicals to the list by use of a methodology set forth in subdivision (a) of section 25249.8. The California Chamber of Commerce (CalChamber) contends this listing method is no longer operable and applied only to the creation of the initial Proposition 65 list. It asserts further changes to the list must be made using one of the three methods set forth in subdivision (b) of section 25249.8. The trial court concluded the…