Coal industry executives ought to pay attention to the lead paint lawsuit currently happening in the California court system.

Recently, a lawsuit was filed against the makers of lead paint, alleging that the industry knew about the toxicity of their product and yet still promoted it as “safe” to the public.  The industry has faced many lawsuits over their products in the past, most of which were unsuccessful for the victims, due to the fact that the industry was often up front about the dangers of their products, and they funded public studies to determine the health effects.

But things have changed in the American legal system, and attorneys are now taking a page out of the tobacco litigation playbook.  By unearthing documents that detail the lead paint industry’s attempted cover-up of the dangers, they avoid the “buyer beware” caveat that the tobacco industry used for so long. 

And just like the tobacco industry, lead paint manufacturers were specifically targeting children with their ads.  The California lawsuit is making that a central part of the trial.  Also reminiscent of the tobacco litigation, the suit was filed by cities and municipalities, not individual victims, greatly increasing the chance for success.

The coal industry should be paying very close attention to the progress of this litigation, as their activities could become the next target of skilled attorneys.  For decades, the coal industry has been poisoning American citizens with their coal-mining, -burning and -dumping activities.  Additionally, the dismal working conditions for miners has cost many families an unnecessary loss of life.

The use of tobacco, and even the use of lead paint, were choices that consumers consciously made (in the case of lead paint however, it could have been the only option available.)  Both were used by rich and poor alike, covering every socioeconomic facet of the country.  The “choice” factor actually allowed the industry a break in litigation, by telling juries that consumers made the decision and must live with the consequences.

The coal industry does not necessarily have the luxury of using the “free choice” argument.  While the argument could be made that coal miners or residents in areas with coal ash dumps or near power plants could simply move on to a new area or career, economic principles are often not in favor of a career change or relocation.  Many residents cannot afford to move away or don’t possess the necessary skills or are too old to find work in another sector.

Removing the “choice” argument certainly makes it easier to try a case, but is there enough evidence on hand to even bring a case?  The answer to that question is a little bit trickier.

Like any class action lawsuit, plaintiffs must be able to prove that the industry not only knew about the dangers of their product, but also were involved in a specific attempt to mislead or deceive the public.  The bottom line is that they had to have been 100% aware of the dangers within their industry.

Any person with access to the Internet can find a plethora of peer-reviewed scientific studies that extensively detail the dangers of coal burning and coal dumping.  Areas around coal plants and dumpsites have abnormally higher rates of cancers, breathing problems, and premature deaths.  They also have shorter life expectancies and higher infant mortality rates.  Dangerous heavy metals like arsenic and mercury have been proven to be byproducts of the coal burning process, and dumpsites test well above the legal threshold for these toxic metals. 

It would seem that this information would be enough for attorneys to go ahead and file suit.  Unfortunately, that’s not the case.  Again, it all comes down to what the industry knew, how long they knew it, and what they did with that information.  The studies mentioned above were either done by outside organizations or the federal government, not the industry.  While it may be public knowledge, an attorney has to be able to prove that the industry was involved in some form of cover-up.

But that may not be as difficult as it sounds.

Documents have already been uncovered that show that managers at Massey Energy were well aware that the working conditions at Upper Big Branch mine were abysmal, and that it was only a matter of time before something horrible happened to their workers.  They hid this information from workers, chose to do nothing about their internal warnings, and in April of 2010, 29 workers were killed in an explosion at the mine.  These deaths could have easily been avoided had the company taken appropriate actions.

There is also plenty of evidence that suggests that the industry was permitted to manipulate EPA studies about the toxicity of coal ash, effectively deceiving the public.  Other reports show that the industry outright hid internal reports about the dangers of coal ash.  That alone could be enough to spark discovery for a possible suit against the industry.

What happens in the lead paint lawsuits will likely determine the feasibility of a lawsuit against the coal industry.  We’ll be watching closely in the months ahead.