The Great California Airway Robbery

Blog – Is there something in the drinking water in California that causes their legal system to be polluted with dumb ideas?

Maybe it’s just too much chardonnay or perhaps all that ‘medical’ marijuana.  Whatever the reason, the latest legal salvo against aviation in Californiais rewriting the terms of “innocent until proven guilty.”  Suddenly, without so much as a committee hearing in Sacramento, 100LL avgas is alleged to be an illegal product to sell and those that sell it are being pursued by bounty hunters who smell millions of dollars of ‘rewards’ as part of this game.

Of course, everyone familiar with aviation knows that we are more heavily regulated than virtually any other commercial enterprise, with the federal government long ago declaring that it had the absolute authority to write the rules that affect the American air transportation system.  Just about anyone and anything that touches an airplane needs an OK from Uncle Sam.  Now a few lawyers inSan Francisco, fronted by some so-called health experts inOakland,California, think they have the power to shut down general aviation as we know it in California and, presumably, extend their unfettered authority across the other 49 states.

The particular legal action taken against avgas producers and dealers in California is based on Proposition 65, passed in 1986 to give citizens the ‘right to know’ what toxic substances were in their communities and to help protect them from chemicals that caused cancer, birth defects or other reproductive harm.  Proposition 65 also created a master ‘Prop 65 List’ of hazardous materials that require ‘Prop 65 warnings.’

Most Prop 65 litigation, in fact, deals with products (and often the retailers thereof) that are allegedly sold without the proper Prop 65 warning.  That’s why consumers across America check their GPS and wonder why “WARNING:  This product contains a chemical known to the State ofCaliforniato cause birth defects or other reproductive harm” is on almost everything in their local hardware or convenience store.

The Lexington Law Group, the lawyers behind the avgas ‘Notice of Violation,’ have built a prosperous legal practice in this murky legal arena, taking aim at a wide range of ordinary products that contain an ingredient from the Prop 65 list.  They tried, for example, a case against makers of smoking-cessation products, like Nicoderm and Nicorette, since these products contain small amounts of nicotine, which is on the Prop 65 list.  Even though the warnings on these products were required by the FDA, theLexingtonlawyers argued that they weren’t up to Prop 65 standards.  The bounty hunters lost the case (Dowhal v. SmithKline Beecham Consumer Healthcare, etc., et al.) at first but won a reversal on appeal.  SmithKline et al. then took the case all the way to the California Supreme Court where they were eventually successful.

I was impressed by a passage in the appeals court’s opinion describing when and if state laws like Prop 65 are pre-empted by federal authority.  While the entire opinion, especially as it involves specific congressional direction about the FDA’s authority, is complex and was subsequently reversed by the Supreme Court inSacramento, it is instructive when it defines three very different situations where federal law is pre-emptive.  The court’s opinion has, I suspect, special relevance in the case of avgas:

“The United States Supreme Court has explained that federal preemption arises in three circumstances. First, Congress can define explicitly the extent to which its enactments pre-empt state law.  Pre-emption fundamentally is a question of congressional intent, and when Congress has made its intent known through explicit statutory language, the courts’ task is easy.  Second, in the absence of explicit statutory language, state law is pre-empted where it regulates conduct in a field that Congress intended the Federal Government to occupy exclusively.  Such an intent may be inferred from a ‘scheme of federal regulation so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it,’ or where an Act of Congress ‘touch[es] a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject….’  Finally, state law is pre-empted to the extent that it actually conflicts with federal law.”

Thus, despite what appears to be clear federal pre-emptive authority in aviation, someone might argue thatCalifornia’s experience in the regulation of gasoline for automobile use justifies a claim that they should have similar control of avgas ingredients.  However, the power of individual states to regulate automobile use and ownership, along with their authority to license drivers, inspection stations, and the like, is totally absent in the field of aviation, where virtually all authority rests with the federal government.

It seems to me that, no matter how artfully they try to use the power of Prop 65 to extort avgas suppliers, the lawyers at the Lexington Group have a difficult case to win.  Hopefully, the ‘responsible parties’ named in the notice of violation, the defendants as it were, will seek summary judgment to have this case dismissed, but no one can predict how California’s courts will react.

The Dowhal v. SmithKline case is illustrative in two other important ways.  Its tortuous (forgive the pun) route through theCalifornia legal system demonstrates how tenacious lawyers can be within the strange world of Prop 65 litigation.  The payoffs are powerful incentives for plaintiffs to pursue even marginal cases.  Fortunately, the defendants in this case were equally tenacious and persistent. 

It is also interesting that the plaintiffs’ (temporary) victory at the appeals level was achieved because of the court’s consideration of utterances during the Senate floor debate on an authorization bill for the FDA. California’s Senator Barbara Boxer, a stalwart supporter of the plaintiffs bar if ever there was one, insisted thatCalifornia’s Prop 65 was not being pre-empted by congressional action authorizing new drug regulations.  Don’t be surprised if, during the debate over FAA Reauthorization in the weeks ahead, someone fromCaliforniasuddenly tries the same gambit and attempts to remove pre-emptive federal authority over avgas specifications in theGoldenState.  Hopefully, members of the General Aviation Caucus will be on the lookout for innocent-sounding colloquies that could undermine the case for FAA pre-emption.

Of course, there are many other arguments to make against this unwarranted legal action inCalifornia.  Presumably, aviation interests across the state will explain how impractical, not to mention potentially dangerous, unilateral state regulation will prove to be. 

Someone might also raise the simple question of benefit versus cost.  Taking thousands of planes out of the sky might be justified if scientific evidence proved that public health would be significantly improved, but no one has presented any real data directly connecting avgas use inCaliforniato any injury or illness.   

Someone could also point out that lead occurs naturally in our air, ground, and water, and that millions of products are legally sold every day in California containing lead or one of the myriad other substances on the Prop 65 list.  Even the Chinese herbs sold there need a Prop 65 lead warning (see http://www.drshen.com/proposition65.htm)!

Automobile gas in Californiaalso has a Prop 65 warning, in part because of the 50 million gallons of toluene in all the unleaded mogas sold in the state every year.  Apparently the legal eagles at the Lexington Group aren’t as picky about any unpopular ingredients in the transportation fuels that they want to buy.  

The simple truth is that Prop 65 has become a nightmare for thousands of California businesses.  A high-stakes California law firm now has our industry in its sights, but we’re only the latest in a long list of targets for these opportunistic extortionists (see http://www.drshen.com/Prop65-NYTimes-June11-2007.pdf for a few unbelievable examples).  One California appeals court judge, David G. Sills, calls the whole mess a system of “shakedown litigation.”  If ever there were a time for the aviation community to stand firm, this is it.

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