In its analysis of the separation of powers issue, the court reasoned that in the Lead Paint Statute, the Legislature explicitly set forth the manner in which local health agencies are to enforce its provisions. The court refused to “circumvent” the precise grant of statutory powers by liberally construing the law.

The plaintiffs’ action was also found to exceed municipal police powers by infringing on fiscal policy. Once again, the trial court stressed the specific limited authority granted to local boards of health by the Lead Paint Statute, which authorizes actions only for abatement by injunction, abatement where the property owner fails to comply or reimbursement from the owner. In the absence of specific legislative authorization, the governmental services described in the Lead Paint Statute were to be provided free of charge.

The action was further found to be impermissible under the Constitution’s Commerce Clause. The court reasoned that the plaintiffs were essentially seeking to impermissibly regulate and punish lawful conduct occurring outside New Jersey, that is, the past sale of lead pigments by out-of-state manufacturers to in-state companies.

The court also rejected the plaintiffs’ reliance on the public nuisance theory and their assertion that the action was supported by the declaration in the Lead Paint Statute that the presence of lead paint in a dwelling constitutes a public nuisance. It found that public nuisance does not encompass manufacturers who place lawful products in the stream of commerce and exercise no further control.

Plaintiffs’ failure to establish direct injury — essentially proximate cause — led to the dismissal of their cost recovery claims. The governmental entities also were unable to establish the requisite elements of fraud with respect to adequate reliance on the defendants’ misrepresentation. The claim for civil conspiracy likewise failed since it was predicated on the fraud claim. The plaintiffs’ unjust enrichment claim was likewise dismissed in that they failed to demonstrate that they conferred a benefit on the defendants.


The lead pigment industry’s view of this type of litigation is expressed on its Web site:

In bringing these suits, the plaintiffs — both private individuals and government officials — misrepresent the facts and attempt to use discredited legal theories to prevail. Government plaintiffs also are partnering with well-known wealthy plaintiffs’ attorneys to secure additional resources to wage their suits.

Despite these tactics, the plaintiffs cannot overcome the basic truth: former manufacturers of lead pigment have a long record of corporate responsibility. As the medical community, government and industry came to understand the risks associated with lead paint, the industry took steps to protect workers, painters and the public at large.

These views were consistent with those expressed by one of the defendant’s counsel, Ezra Rosenberg of Princeton’s Dechert, who observed: “The court recognized that this lawsuit was not an appropriate way to address hazards to children living in neglected housing. Our Legislature has placed responsibility where it belongs — with landlords who do not maintain their properties and thereby put children at risk. Perhaps this ruling will focus cities and towns on enforcing the law against property owners who create lead hazards, rather than against persons who had no control over the application, use and maintenance of lead paint.”

As might be expected, the plaintiffs’ attorneys did not share these views. According to Michael Gordon, of West Orange’s Gordon & Gordon: “I believe it is appropriate for New Jersey courts to specifically recognize that a public nuisance can be caused by a legal product and that municipalities and counties have the authority to take legal action to abate this type of serious public health condition. I believe that the Judge’s opinion too broadly interprets the breadth of the statutory scheme that currently exists in New Jersey with regard to remedial action concerning the presence of lead paint.”

Goldshore is a partner at Szaferman, Lakind, Blumstein, Blader, Lehmann & Goldshore ( of Lawrenceville. Goldshore and Wolf are co-authors of New Jersey Environmental Law, the Environmental Law Citator, the Environmental Law Newsletter, published by the New Jersey Institute of Continuing Legal Education and an online New Jersey environmental newsletter, Goldshore is a co-author of “New Jersey Brownfields Law,” published by New Jersey Law Journal Law Books. Their column appears regularly in the New Jersey Law Journal.

If you are interested in submitting an article to, please click here for our submission guidelines.