Gotham Gazette

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Court Overturns Current Lead-Paint Law

In the wake of the state Court of Appeals' unanimous decision on July 1 to strike down the city's lead-paint law, there is much celebrating by advocates for the health of New York City's children (especially its children of color and disadvantaged background) and tenant and environmental groups.

"It's a victory for the children of this city," said City Councilmember Bill Perkins, who introduced a new, more stringent lead-paint bill to the Council more than a year ago, only to have it languish without a hearing until only nine days before the Court of Appeal's decision. "The law was a law that was ineffective. The court's ruling is also good because it means we have overcome the hurdles to focus on our bill, which will effectively address the city's lead-poisoning issues."

It has long been known that lead is toxic and can cause retardation and a variety of other lifelong impairments, especially in young children. In its 1991 report "Preventing Lead Poisoning In Young Children," for example, the U.S. Centers for Disease Control and Prevention noted that even very low levels of blood lead in children have been linked to diminished intelligence, decreased stature or growth, and loss of hearing. (Children are especially vulnerable because of their small size, the fact that they are still developing mentally and physically, and their tendency to use their hands and mouths on available surfaces and to eat things adults would avoid.)

As Gotham Gazette wrote in an Issue of the Week, when a divided City Council passed the 1999 lead-paint law, known as Local Law 38, it replaced a 1982 lead-paint law that required that all lead paint be removed from the city's older buildings. Landlords complained that that 1982 law had been onerous and unrealistic.

The Court of Appeals has now ruled that when the City Council passed Local Law 38, it violated state environmental law by failing to adequately study or explain the new law's environmental or public-health impact.

With Local Law 38 struck down, the city reverts to the 1982 law. The Court of Appeals, however, found that that law, while much more comprehensive than its replacement, also "is not a viable or realistic approach to protecting the city's population, particularly its young children, from lead exposure." The court therefore urged the various interest groups – landlord groups, tenant advocates, the current mayoral administration – to negotiate in good faith, and urged the City Council to develop a new lead-paint law without delay. Perkins agrees. " Every day of delay is a day when children are being poisoned," he said.

He acknowledges, however, that a fight still lies ahead to get his stricter bill passed, and in a form that retains teeth. "To me, this is a marathon -- the last three miles are the toughest," he said. "The landlords can be relentless in avoiding their responsibility. Our biggest problem will be that there may be others who may try to recast this bill to turn it back into Local Law 38 in another guise.

" We realize we have to fight even harder now. This victory is not a reason to relax and stop fighting."

The Bloomberg administration has opposed the bill Perkins is championing, known as Local Law 101A. Michael A. Cardozo, Corporation Counsel for the city, issued a statement about the court's ruling that said, in part, "We are disappointed by [the] court's decision. The city felt that Local Law 38 provided a comprehensive, safe, workable approach to the control of lead-based paint hazards.... In our view, the court's decision gave inadequate weight to the council's extensive consideration of potential environmental impacts."

" That said, the City Council must now act promptly to rectify the situation," he wrote.

Opponents of the change in the law point to the fact that for years there has been a sharp and steady decline in the number of the city's children identified as having elevated lead levels.

The city's Department of Health and Mental Hygiene, which tracks new cases of elevated lead levels in children, had in fact issued a press release on June 11 that headlined a 79 percent reduction in new cases from 1995 to 2002, when there were 3,985 new cases reported.

"Four thousand new cases last year is nothing to brag about," Perkins countered.

Interestingly, the department press release was subtitled, "Parents with Small Children Should Insist that Landlords Fix Peeling Paint, It's the Law" – highlighting the fact that Local Law 38 put the onus squarely on parents to know their rights under the law, know about and recognize lead-paint hazards to their young children, report violations in writing to their landlords, and make sure the landlords addressed the problem properly. It also limited tenants' ability to sue their landlords.

The new bill before the council, among other increases in stringency, shifts the burden of inspecting for lead-paint hazards from the tenant to the landlord, imposes penalties on landlords for noncompliance (according to the New York City Coalition to End Lead Poisoning, Local Law 38 provided "no penalties whatsoever for noncompliance"), includes lead dust (a known hazard to small children) among the problems that landlords must inspect for and correct, lowers the age of protected children from 6 to 5, and applies to day-care centers and schools as well as homes.

According to the city health department’s 2001 report on lead poisoning in the city, nearly 95 percent of children identified as suffering from lead poisoning were black, Hispanic, or Asian. "There is a stubborn tendency for children of color to be the ones who are affected," said Perkins.

The 3,985 new cases in 2002 also followed a well-established pattern of occurring disproportionately in poor neighborhoods, such as low-income pockets of the Bronx, Harlem, Queens, and areas like East New York and Flatbush in Brooklyn.

"The constituency that is most victimized is the least politically powerful," said Perkins, who represents parts of Harlem, Morningside Heights, and the Upper West Side. "That's why the council has to be the champion of the victims of lead poisoning. We failed at that in 1999, but I think we now have a chance to redeem ourselves.

"We need a transitional plan, so says the court. Well, we've put together an alternative law and had it before the council for a year. So we're way ahead of the game. Now, we need to start immediately to meet with the mayor, landlord bodies, and other members of the council, and to get this thing moving."

Some of the bill's supporters, who now include 37 of the City Council's 51 members, have accused Council Speaker Gifford Miller of stalling the progress of 101A, which he does not support.

"The support of the Speaker would obviously be very helpful at this point," Perkins said. "He needs to stop dragging his feet, to say the least."

In covering the Court of Appeals decision, the New York Daily News reported that Miller received $35,950 in campaign contributions from real-estate groups. Miller told the News that the money had not influenced his stance on the bill.

Sue Wilson is a journalist who writes frequently on health and science topics for such outlets as the New York Times, WNET, and UNICEF.

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