City Appeals Decision Striking Down ‘99 Lead Law
by Steven Wishnia

Claiming that the City Council had given "massive consideration to all environmental factors" before enacting a new lead-paint law in 1999, lawyers for the Giuliani administration urged the Appellate Division to overturn a lower-court ruling striking down that law.

Local Law 38, which drastically weakened landlords’ responsibilities and tenants’ recourses to fight lead poisoning, was ramrodded through by Mayor Giuliani and Council Speaker Peter Vallone. It was struck down in October 2000 by Justice Louis B. York, on the grounds that the Council had failed to file an environmental-impact statement, as required by state law. Justice York called the Council’s environmental review "mostly perfunctory, only occasionally rising to the level of cursory, with the operative word being alacrity rather than analysis."

The Appellate Division’s First department heard oral arguments Oct. 26 in the case, New York City Coalition to End Lead Poisoning v. Vallone. State Attorney General Elliot Spitzer and a group of 24 lead-poisoning experts have filed amicus briefs supporting Justice York’s decision, while four leading real-estate lobbying groups have filed one supporting the city’s appeal.

"The City’s briefs failed to answer the legal issues before the court," says Matthew Chachere of the Northern Manhattan Improvement Corporation, an attorney for the NYCCELP coalition. "1) Whether Local Law 38 may have adverse environmental impacts (on which there is really no dispute), and 2) if so, did the City meet the requirements for environmental review as required by state law (the City didn’t really address this, either)."

The 1999 law repealed 1982’s Local Law 1, which presumed that all apartments built before 1960 had lead paint and required landlords to remove it in apartments where there was a child under 7. The city government never fully enforced Local Law 1, despite years of litigation. Lead poisoning, which can cause learning disabilities, affects 30,000 children in the city.

One advocate called Local Law 38 "the worst public-health bill the Council has passed in recent memory." It strictly limited what lead-paint conditions were considered health hazards. It did not define lead-paint dust--the prime source of lead poisoning--as a health hazard, only peeling or flaking lead paint. Instead of requiring landlords to remove lead paint immediately, it only required them to inspect for peeling or flaking paint once a year, if the tenant informed them that they have a child under 6, and allowed them to "self-certify" that removal work was done properly. It also barred lead-poisoned children and their parents from suing landlords for negligence unless that could prove that they notified the landlord of a lead hazard.

Chachere says he’s hopeful that the appeals court will uphold the decision striking down the law. He notes that Justice Peter Tom, who headed the five-judge panel that heard the oral arguments, wrote the Appellate Division’s "seminal 1996 decision in Williamsburg Around the Bridge Block Association v. Giuliani, which declared that lead dust is a hazard and that the enactment of laws and policies concerning the regulation of lead paint and lead dust must comply with state environmental review laws, and which rejected the City’s arguments that it could evade those laws by asserting they did something ‘just as good.’"

The Williamsburg case, he adds, was key to Justice York’s decision striking down the 1999 law, "and the City really didn’t have any arguments as to why this case shouldn’t be followed."