Monday, February 08, 2016

Warning sign for the First Amendment: safety signs unconstitutional?

PSEG Long Island LLC v. Town of North Hempstead, No. 15-cv-0222 (E.D.N.Y. Feb. 3, 2016)
Around the country, construction companies and similar businesses are routinely required to post warning signs of various sorts in order to proceed with their work.  Here, the court holds that the First Amendment requires such sign requirements to survive strict scrutiny, because they compel speech and aren’t triggered by associated commercial speech; thus it’s not a commercial speech disclosure.  It’s a troubling holding, and could have benefited from some consideration of, among other things, Robert Post’s useful work on the matter (link is to just one of his works).
The facts: North Hempstead, arguably for bad motives, required public utility providers to post warning signs on wooden utility poles that have been treated with certain chemical preservatives.  In 2014, PSEG (through LIPA, an entity that is its public face) began replacing 23 utility poles in the town.  Wooden poles 40-45 feet high were replaced with similar poles having a height of 80-85 feet, in order to accommodate a higher-power transmission line.  Both the shorter outgoing poles and the taller incoming poles were pre-treated with a wood- preserving chemical known as Pentachlorophenol (penta).  Town officials objected to the appearance of the new poles.  A report by a hydrogeologist named described testing of Penta-treated utility poles in the Town of East Hampton, and of a sampling of the soil adjacent to those poles. A cover letter said:
The results indicate that significantly elevated concentrations of penta were detected in the soil at both shallow and deep locations at two of the three poles. . . . The penta concentrations at [these] Poles [ ] ranged in concentration from 29,900 micrograms per kilogram (mcg/kg) to 250,000 mcg/kg. These concentrations represent significant exceedances of the  New York State Department of Environmental Conservation 6 NYCRR Part 375.6 Unrestricted Use Soil Cleanup Objective for penta of 800 mcg/kh.
The use of penta was banned in 26 countries. It was widely used in the United States until it was banned for public use by EPA in 1987. Its use in the United States is now limited to wood preservation of utility poles and railroad ties. The presence of penta on the poles and in the soil in the vicinity of the poles appears to represent a significant risk to human health and the environment.
As stated previously, the EPA considers penta highly toxic and, therefore, its presence on utility poles presents an inhalation and ingestion risk. Its presence in the soil presents a dermal contact, ingestion, and inhalation risk. At the poles where penta is present, there is also a high potential for the penta to leach downward through the soil and contaminate the groundwater.
The hydrogeologist’s recommended precautions included: installing fencing around the poles to prevent incidental contact by children, pets, and wildlife; installing placards to warn residents not to touch or otherwise make contact with the pole or the soil in its vicinity; notifying residents in the area of the potential hazard associated with the new poles; and instructing them to avoid the new poles to prevent inhaling or ingesting the chemical.
The town suggested that PSEG affix warning signs to the poles.  PSEG rejected this suggestion, though its website contained information about penta, including a “Penta Poles FAQ”:
What should I do if I come into contact with a Penta treated wood pole?
Common sense care should be taken to limit prolonged skin contact with Penta treated poles or the soil at the base of the pole, just as care should be taken to limit exposure to other products containing pesticides like household garden and insect sprays. Avoid prolonged direct contact with Penta treated wood poles and wash hands or other exposed areas thoroughly.
Thomas B. Johnson, Ph.D., a research scientist in the Bureau of Toxic Substance Assessment of the New York State Department of Health, wrote a letter to James Tomarken, MD, the Commissioner of the Suffolk County Department of Health Services.  The letter said (setting aside questions about its admissibility):
[P]eople would be unlikely to contact soil near the poles with sufficient duration and frequency to result in a significant risk for adverse health effects. To further evaluate exposure to this soil, we examined the potential for acute (short-term) health effects in a child who might sit at the base of a pole and eat some of the soil. Even at the highest pentachlorophenol soil concentration reported in the April 22, 2014 Dermody Consulting letter (250 milligrams per kilogram of soil), the exposures that might result from this kind of activity are well below exposure levels that might cause health effects.
Regarding the health risks to people who might, for example, put their hands on the utility poles, there is ample scientific information to indicate that direct contact with pentachlorophenol can irritate the skin and eyes. Therefore, it is possible that people who have direct skin contact with a utility pole treated with pentachlorophenol- containing product could experience skin irritation. However,  we would not expect frequent, routine or long duration skin contact with utility poles.
The town ultimately passed a new rule with an explicit legislative finding that “wood utility poles that are treated with hazardous chemicals such as pentachlorophenol, creosote, inorganic  arsenic,  or other similar chemicals constitute a potential danger to the public and that the public should be informed of such potential danger.”  Thus:
In a line of utility poles, the public utility shall post a sign on every fourth pole. The sign shall be posted in a conspicuous location at least four feet and no more than five feet from the base of the pole. The sign shall contain the following warning: “NOTICE – THIS POLE CONTAINS A HAZARDOUS CHEMICAL. AVOID PROLONGED DIRECT CONTACT WITH THIS POLE. WASH HANDS OR OTHER EXPOSED AREAS THOROUGHLY IF CONTACT IS MADE.”   The sign shall be oriented towards pedestrian traffic wherever possible. The text of the sign shall be of a font size that is no less than 36 point. The text of the sign shall be black on a white background.
This provision defined the term “hazardous chemical” as “[a]ny chemical compound used as a wood preservative to treat wood utility poles to protect them from fungal decay and wood-destroying pests.”
A scientist with 28 years of experience in environmental consulting, environmental and analytical chemistry, and undertaking human and ecological risk assessments, opined that the Town did not perform an adequate assessment of the risk posed by the Penta-treated utility poles, failing to use EPA-approved methods and reaching a conclusion about risk that was contrary to the EPA’s own findings that “assuming all pentachlorophenol exposure results from pentachlorophenol treated poles . . . the total risks result in no unreasonable adverse effects from the currently registered wood preservative use.”  Although the Town didn’t dispute these findings, it offered contrary information from the National Pesticide Information Center, which stated that Penta is “considered a probable human carcinogen and exposure to high levels can also have other health risks.”  (There were similar factual issues with another wood preservative, chromated copper arsenate, also implicated by the law.)
PSEG also submitted evidence that approximately 60 million chemically-treated wooden utility poles were in service across the United States.  In addition to the 23 utility poles at issue in this case, PSEG also owned more than 25,000 chemically-treated utility poles throughout the Town, to which warning signs would also have to be added, at great cost. Also, PSEG submitted evidence that there were a number of wooden structures, other than utility poles, treated with similar chemical compounds and involving higher risks of extended human contact, such as dock walkways comprising wood flooring, guard rails, and hand rails.  The Town did not require warning signs for these.
The court noted that the right not to speak is highly protected by the First Amendment, except in the commercial speech context.  The court first noted that the facts of this case weren’t similar to other cases that it or the parties had identified.  (In part this is because it is such a radical argument—lots of companies have disagreed with lots of safety warnings, but it’s only in recent years that First Amendment compelled speech arguments against them became “on the wall,” to borrow a phrase.)  However, the court looked at common definitions of commercial speech as speech proposing a commercial transaction, or speech related solely to the economic interests of the speaker and its audience.
National Electric Manufacturers Association v. Sorrell, 272 F.3d 104 (2d Cir. 2001), upheld a Vermont statute requiring manufacturers of mercury-containing products to place labels on their packaging to inform consumers that the products should be recycled or disposed of as hazardous waste. The law was intended “to better inform consumers about the products they purchase” and was thus “inextricably intertwined with the goal of increasing consumer awareness of the presence of mercury in a variety of products.”  Commercial speakers had no fundamental right not to disclose truthful information about their products.
By contrast, Safelite Group v. Jepsen, 764 F.3d 258, 264 (2d Cir. 2014), struck down a Connecticut statute that prohibited insurance companies and claims administrators from referring insureds to affiliated glass companies for repairs, unless they also gave the name of a competing glass company in the area.  Forcing Safelite to promote competitors deterred commercial speech without furthering consumer information goals:
The law does not mandate disclosure of any information about products or services of affiliated glass companies or of the competitor’s products or services. Instead, it requires that insurance companies or claims administrators choose between silence about the products and services of their affiliates or give a (random) free advertisement for a competitor. This is a regulation of content going beyond disclosure about the product or services offered by the would-be speaker.
From these precedents, the court here concluded that, “in order to qualify as commercial speech, the message sought to be regulated must necessarily bear some discernible connection to the commercial interests of the speaker.”  The mandated warning signs here weren’t commercial speech under that standard, because they bore “no discernible relationship to the Plaintiffs’ products, services, or other commercial interests.”  The signs didn’t propose a commercial transaction, and PSEG was a local monopoly with no competitors, which is why it doesn’t bother to promote the sale or transmission of energy.  And even if they did, “the warning signs would serve no commercial purpose in an open market for electricity because they relate solely to the chemical treatment of the utility poles, which the Plaintiffs neither make nor sell.”  Nor could the information cause consumer behavior in terms of purchasing electricity to change.
Comment: what a bizarre conclusion.  The poles transmit the energy, and (at least as found by the relevant legislative body) pose some health hazard.  In order to provide the service, then, PSEG uses the poles—it’s not like PSEG erected them for some reason unrelated to the provision of the electricity it sells.  Indeed, as the court pointed out for other reasons, the poles are used instead of underground lines because that makes the electricity cheaper.  The poles are an integral part of the service PSEG sells.  Although the poles aren’t sold to customers, so what?  The electricity provided via the poles is. 
Under this reasoning, here are other things that should also be subjected to strict scrutiny (and probably fail, given the analysis applied below): regulations requiring that delivery trucks bear clear markings warning consumers to stay back, as applied to a company that delivers vegetables to grocery stores and doesn’t sell trucks.  Regulations requiring construction companies to post warnings to passers-by about watching for falling material and staying back from the construction site, as applied to construction companies that only build big projects.  Regulations requiring airplanes (or for that matter commercial buildings) to have clearly marked exits and other safety information. 
The court thought that it mattered that “it appears to be wholly immaterial to Chapter 64B’s objective that the wooden poles happen to carry electric transmission wires, or any commodity for that matter.”  True, but so what?  If the problem is caused by the delivery method, then the regulation makes sense applied to anything using that delivery method, just as with required markings on delivery trucks.  And the electricity is in fact both carried via the poles and sold into the market.  Obviously, the real problem with this regulation is that it is, on the evidence, both burdensome and not particularly well-justified in singling utility poles out for the burden.  But that’s Lochner.  The legislature is generally allowed to make stupid laws—unless the plaintiff succeeds, as here, in using the First Amendment to resurrect Lochner.
Likewise, the court found the information required to be disclosed—that people who come into contact with the pole should wash their hands—unconnected to the economic interests of PSEG or the people reading the signs.  First of all, the “solely” part of “expression related solely to the economic interests of the speaker and its audience” could never be taken literally, because advertising is almost always about non-economic interests, aka preferences—my preferences for cereal that tastes good, or coffee that is sustainably harvested, or ice cream made by crunchy Vermont liberals.  PSEG’s interest in having the poles is solely commercial: the poles enable it to sell electricity at a price less than it would have to charge without poles.  True, it’s not speaking at all via the poles until required to make the disclosure, but that just means that this particular framing of the commercial speech test doesn’t work, not that the poles are noncommercial speech or that PSEG’s silence on the matter is noncommercial silence.
(As for the bit about there’s no possible change of consumer behavior here, and the court’s related point that consumers don’t have a choice about getting their electricity from the local monopoly, consider this: the Court in Central Hudson and Virginia Pharmacy defended truthful commercial speech as useful to consumers both in helping them find the products they wanted and in helping them make decisions about important matters of economic regulation.  To the extent that the signs inform consumers of the danger of preservative-treated poles, they definitely help people make decisions about the relative value of cheaper energy and utility poles v. more expensive energy and underground wires.  Most likely, most people will choose to live with the tradeoff.  But it’s still information that is potentially relevant to them.)
Having found that this wasn’t commercial speech, the court quickly determined that it wasn’t government speech either, because the government wasn’t the speaker and wasn’t appropriating public funds to transmit its message through private speakers.
With that out of the way, strict scrutiny applied.  Even assuming that the risk of exposure to the poles constituted a compelling government interest—something the court seemed dubious about—there were less restrictive means of addressing the problem, such as signs on public property or a public education campaign funded by the Town itself.  The Town’s argument that this was less likely to reach people who were about to lean on poles was insufficient to survive strict scrutiny. First, the Town didn’t prove that warning signs were most likely to be effective; common sense wasn’t  enough to justify the Town’s argument.  Plus, the Town failed to explain why it didn’t choose less restrictive means, such as creating and displaying the same warning signs on any and all Town property, “of which there is far more than the 23 privately-owned utility poles at issue in this case.”  It could also send mail to residents about the issue.
H/T Mark McKenna.


  1. So are failure-to-warn product liability claims now subject to strict scrutiny? Traffic laws requiring the use of turn signals?

  2. I think, according to the court, if the product is used by its purchasers (and not by those who have purchased it for them), warnings are still commercial speech. (As opposed to, as Post would say, not even commercial speech.) Otherwise: yes, also traffic laws. However, I suspect that at least traffic laws would survive strict scrutiny, though given the alternatives analysis the court goes through here mandatory warnings should not.