History of Proposition 65
Adopted by California voters in 1986, Proposition 65 was a revolutionary measure in a number of respects. Although titled “Safe Drinking Water and Toxic Enforcement Act,” the scope of the law was much broader than water pollution. The goal of the law was to protect Californians from exposure to cancer-causing substances and reproductive toxins. In addition to prohibiting introduction of such chemicals into the water, the law also required warnings so people could choose to avoid areas where they might come in contact with chemicals known to cause cancer or reproductive harm. Immediately after passage, the new law required the state to compile a list of substances known to cause cancer and reproductive toxins. This list has now grown to nearly 900 different substances. Because the law mandates warnings that allow consumers to avoid exposure to these chemicals, backers of the measure argued that it would reduce the incidence of cancer and other health problems in California.
Proposition 65 was adopted by California voters after it appeared on the ballot in the November 1986 election. As described in the voter pamphlet, the measure required warnings before exposing any person to a chemical “known to the State of California” to cause cancer or reproductive toxicity. The proposition also prohibited discharging those dangerous chemicals into the drinking water supply. Under the new law, the Governor was ordered to designate a lead agency to produce a list of chemicals “known to the State of California” to cause cancer or reproductive toxicity. Although the Legislative Analyst could not provide an accurate estimate of the increased enforcement costs to state and local governments from the new measure, the Analyst expected that a portion of the increased costs would be offset by fines and civil penalties provided for in the new law.
The proponents of Proposition 65 set out the purposes of the measure as follows:
- Keep known toxins out of the drinking water
- Require warnings to alert the public before they are exposed to the toxins
- Allow private citizens to enforce the measure in court
- Require government officials to notify the public when illegal discharges of toxic waste could pose a serious risk to public health.
According to the proponents, all of this comes at a “negligible” cost because that cost would be offset by fines and civil penalties. The civil penalties were to be won in lawsuits brought by both public prosecutors and private citizens. The measure provided for civil penalties of up to $2,500 per day for each violation. The entire civil penalty did not to the state treasury, however. To encourage suits by private citizens, one-quarter of the civil penalty that would ordinarily go to the public treasury was to be paid instead to the individual or organization that brought the suit.
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