Reilly won't sue over lead paint

In 1999, Attorney General Thomas F. Reilly turned down pleas to join a Rhode Island lawsuit that resulted in a historic jury verdict earlier this year that could require paint companies to spend an estimated $1 billion or more to rid about 300,000 Ocean State homes of lead contamination.

Now Reilly is rejecting entreaties that he follow Rhode Island's victory with a similar suit against the paint industry, which sold lead pigment until the 1970s despite allegedly knowing for decades it was toxic, according to four advocates interviewed by the Globe who have met with Reilly's deputies to urge them to sue.

These advocates represent housing, public health, environmental, and legal groups that belong to Dorchester's Lead Action Collaborative, which comprises 70 organizations statewide.

``It was conclusive," said Eloise Lawrence, a lawyer at the Conservation Law Foundation who attended two of the meetings with Reilly's deputies. ``They were very clear that this was not going to happen under this attorney general."

Reilly's rationale: Massachusetts law makes such a suit difficult, and he feels stung by the outcome of the 1998 tobacco industry settlement that won the state $8.3 billion, but embroiled him in an ugly battle with several law firms over their legal fees, people who attended the meetings said.

Reilly's top aides said the attorney general is reluctant to work with private law firms again, the advocates said. And since his office does not have the resources to take on the paint industry alone, he will not pursue litigation on his own, these people said.

The attorney general, who is running for governor, declined repeated requests to be interviewed. But Alice Moore, who as chief of public protection represented Reilly at one of the meetings with the advocates, said in an interview yesterday that she did not explicitly tell them Reilly would not sue the paint industry. She insisted yesterday that Reilly has not closed the door on the possibility of litigation, but that the legal hurdles are high.

Asked about the apparent contradiction in what the attorney general's office is now saying about its willingness to sue compared with what the advocates say they were told by Moore and others, Moore said, ``I can't explain that except to say we identified challenges and problems with the Rhode Island suit as it applies to Massachusetts, and we talked about common goals we share, which are the prevention of childhood lead poisoning and getting money to abate lead paint in homes here in Massachusetts, and I would not foreclose litigation."

Of Reilly's alleged disappointment in the outcome of the tobacco dispute, Moore called that assertion ``just wrong."

Moore also said Reilly's staff met in recent weeks with a lawyer from paint maker Sherwin-Williams Co. to discuss additional ways to fund lead remediation.

If Reilly declines to sue, lead activists fear that the state, long a national leader in fighting lead poisoning, may miss a rare chance to win substantial funds to remove lead paint.

``We are disappointed in the attorney general," said Ryan Torres, who is executive director of the Lead Action Collaborative and who said he attended an April 28 meeting at which Reilly's deputies -- Moore; James R. Milkey, chief of environmental protection; Jesse Caplan, chief of consumer protection; and assistant attorneys general Chris Barry-Smith of consumer protection and Danah Tench of environmental protection -- said their office would not pursue a lawsuit.

``We've missed that first opportunity, and now we still have a second chance here but I'm afraid we're going to miss the boat," Torres said.

In Rhode Island's legal victory in February, a jury found that Sherwin-Williams., NL Industries Inc., and Millennium Holdings LLC must pay to clean lead contamination in the state, which could cost more than $1 billion. That verdict came after about a dozen failed attempts nationwide in the past 15 years to hold paint makers responsible for lead contamination.

Past legal actions brought by individual owners of lead-contaminated properties failed largely because it is difficult to determine which company's paint is in a house. But Rhode Island's lawsuit took a different approach: It labeled lead paint a public nuisance that damaged the state as a whole. The companies plan to appeal, and Rhode Island still faces significant legal challenges. But several states and cities, including California, New Jersey, and Milwaukee, have similar pending lawsuits.

Just like Rhode Island, Massachusetts has many older houses that contain higher lead levels than in other regions. But Massachusetts' problem is larger. In Rhode Island, an estimated 300,000 homes contain lead paint. In Boston alone, nearly 170,000 housing units -- about 67 percent of the housing stock -- contain lead, many of them in poor communities unable to afford costly lead paint removal, according to US Census data.

``We're confused as to why Massachusetts hasn't followed Rhode Island's lead and filed a suit," said Brian D. Gumm of the Alliance for Healthy Homes, a nonprofit public interest group in Washington, D.C. ``Everybody who had a hand in creating the problem should pay, including the paint companies, and Massachusetts has been so progressive on this issue for so many years that it would make sense for them to try to get additional resources to continue the good work they've been doing."

Massachusetts officials point to the state's aggressive lead remediation, education efforts, and resulting success at lowering poisoning rates, but the problem outstrips the resources of the government and private property owners. As a result, advocates say, paint makers should help shoulder the expense of paint removal, and litigation or the threat of litigation is the best way to force the industry to pay. They point to DuPont Co., an original defendant in the Rhode Island case, which agreed in June 2005 to pay $12.5 million to several nonprofit groups working on lead remediation and education in return for being dropped from the lawsuit.

``Paint companies are only going to pay attention if there's a big stick in the attorney general's hand," said Lawrence .

In addition to Torres and Lawrence, attendees of the April meeting were Davida Andelman of the Bowdoin Street Health Center; Richard Rabin, a longtime volunteer for several lead advocacy groups; and Thomas Plant of the Boston Public Health Commission. The Globe interviewed four of those five people, who all are members of the Lead Action Collaborative's public policy working group, and all four confirmed that Reilly's staff said no lawsuit would be filed. Plant could not be reached.

``That was first time we ever felt that we got an absolute no from them," Torres recalled. ``Alice Moore said, `We're not going to file a lawsuit.' "

In addition, Lawrence said she met separately with Milkey and Barry-Smith on May 11 to further discuss what Reilly's office believes are legal impediments to suing and was told the state would not sue paint companies.

Reilly's unwillingness to sue, according to Torres, Lawrence, Rabin, and Andelman, stems in part from the divisive court battle that resulted when the Boston law firm Brown Rudnick Berlack Israels and a San Francisco firm sued for an additional $1.3 billion in legal fees for their work on the state's landmark tobacco settlement. Reilly's predecessor, Scott Harshbarger, had agreed to pay the firms a 25 percent contingency fee for handling the case.

But after the tobacco industry paid the 50 states $246 billion to settle the lawsuit, an arbitration panel voted to award Massachusetts lawyers $775 million, or 9.3 percent of the state's $8.3 billion share. Claiming breach of contract, Brown Rudnick sued, spurring heated public debate .

Even though the law firms ultimately lost their fight, ``the AG's office has basically sworn off ever using private counsel again," Lawrence said. ``But if you categorically say that never again are we going to try to tap the resources of the private sector to combat industry when they're harming the public, you've hamstrung yourself in a way that doesn't make sense from a policy perspective."

``At the end of the day this seems to me to be a matter of political will, and this attorney general has decided that he does not have the political will to bring this lawsuit."

Reilly also is concerned that it would be difficult to sue paint companies because state law places the onus of lead remediation on property owners. But state lead laws have been changed several times to expand their reach.

``The bottom line is they just plain are not interested in pursuing that course, and I think they're making a big mistake," Andelman said.

Sacha Pfeiffer can be reached at pfeiffer@globe.com.