Two Lawsuits Challenge Lead Law
By Steven Wishnia

Two groups of environmental, tenant, and community organizations have filed lawsuits in State Supreme Court challenging the city’s new law gutting lead-poisoning protections.

The first, New York City Coalition to End Lead Poisoning v. Vallone, alleges that the law, Local Law 38, is invalid because the City Council did not prepare an environmental-impact statement before passing it last June, violating the State Environmental Quality Review Act. The second, New York Public Interest Research Group v. Vallone, alleges that the way the Council rushed the bill through violated another state law, requiring an emergency message from the mayor and a two-thirds majority if a bill is passed less than seven days after the final version is introduced.

The environmental lawsuit was filed in October and argued Nov. 15 before State Supreme Court Justice Louis York. Met Council is a co-plaintiff, along with NYPIRG, several families of lead-poisoned children, and 11 other organizations.

The state law, says NYPIRG staff attorney Andrew Goldberg, requires governments to prepare an environmental-impact statement for any action that is likely to increase pollutants, to at least acknowledge the problems it may cause. Easing regulations on lead-paint removal, he adds, “quite clearly” fits that condition. But the Council, in passing the bill, issued a “negative declaration,” saying that the new law would not create any environmental hazards.

“They covered their eyes and covered their ears, and said, ‘This is good,’” he says. “There was never any substantive discussion.”

Lawyers from the city are trying to get the case assigned to a different judge, arguing that NYCCELP attorney Matthew Chachere was “forum-shopping” when he filed papers indicating that this lawsuit was related to the coalition’s 14-year-old suit against the city government for failing to enforce its lead-paint laws. “It’s a really bogus argument,” says Chachere.

If the case stays with Justice York, Chachere says he expects a decision “relatively quickly”—which could be any time from a few days to several months.

The second suit is based on the state Municipal Home Rule Law, the City Charter, and the Council’s rules. It argues that because the bill was introduced and passed at the same Council meeting, it required both a “message of necessity” from the mayor and a two-thirds majority.

“Had Local Law 38 not been fast-tracked through the Council in violation of applicable law, it is possible that the entire Council would have addressed some of the law’s most glaring flaws,” NYPIRG said in a statement announcing the suit.

The city’s response is that the final version of the bill was submitted to Councilmembers on June 21, nine days before the bill was passed and less than two hours after the end of the Council Housing Committee’s initial public hearing on it. If that argument is true, says Goldberg, then the committee’s all-day hearing on June 24 was a sham.

“They let the public believe that they were sincerely going to hear public testimony,” he says.

The city Department of Health is changing its regulations on lead-paint removal to fit the new law. At a Nov. 5 hearing on the new rules, Dr. Susan Klitzman, former head of the department’s lead-poisoning prevention program, criticized the new “interim controls” that relax restrictions on landlords who remove lead paint within 21 days of receiving a violation. These controls let landlords have untrained workers do the job, and eliminate requirements that an independent third party confirm that the area is free of lead dust before children can return.

“No scientific evidence has been presented to indicate that the safety measures which have been deleted are unnecessary from a public-health perspective,” she told the panel.