By Cori Badgley
In the recent case City of Los Angeles v. County of Kern (August 10, 2007) 2007 U.S. Dist. LEXIS 62323, the United States District Court for the Central District of California held that an initiative ordinance in Kern County approved by the voters which had the effect of banning the land application of biosolids was unconstitutional. Biosolids or “sewage sludge” are defined as the “solid, semi-solid, or liquid residue generated during the treatment of domestic sewage in a treatment works.” (40 C.F.R. § 503.9(w).) The EPA, under Part 503 of its regulations, distinguishes between biosolids based on “the concentration of pathogens, disease causing micro-organisms, remaining after treatment.” (Pg. 5.) Class A biosolids, which are biosolids that after treatment have no pathogens, can be recycled essentially as fertilizer. This is called land application. Many localities, including the City of Los Angeles and the Orange County Sanitation District, choose to recycle their Class A biosolids through land application instead of incinerating them or using some other method of disposal.
Los Angeles’ choice to use its biosolids as fertilizer, however, has affects far beyond the city’s borders. As we know, Los Angeles is a large, sprawling city with little to no agricultural land on which to apply its biosolids. Therefore, Los Angeles and other plaintiffs have gone to one of their northern neighbors, Kern County (“County”), to dispose of their biosolids. Politicians in the County, in an attempt to rid the County of “Los Angeles Sludge,” mounted a campaign to pass Measure E entitled the “Keep Kern Clean Ordinance of 2006.” As the court concluded, “[t]here being no ‘Friends of Sludge’ to mount opposition to the initiative, the ordinance passed overwhelmingly.” Although the cities and sanitation districts that shipped their biosolids to Kern for land application had no say during the campaign or vote, they did have their day in court. (In fact, Kern County had made a prior attempt in 1999 to pass a similar ordinance, which was held by the California Fifth Appellate District Court of Appeal in County Sanitation District 2 v. County of Kern (2005) 127 Cal. App. 4th 1544 to violate the California Environmental Quality Act.)
Plaintiffs, City of Los Angeles and other southern California governmental entities, based their claims against the County on four grounds: the equal protection clause, the police power doctrine, the commerce clause, and state constitutional preemption. Although the court struck down the equal protection clause and held that the police power claim could not be decided at the summary judgment stage, the court held that plaintiffs prevailed on their commerce clause and state constitutional preemption claims. Since the court quickly dismissed the equal protection clause claim, this article will focus on the other three claims.
Police Power Doctrine
Plaintiffs argued in their motion for summary judgment that “Measure E exceed[ed] [the County’s] police power under the California Constitution because it is not reasonably in the welfare of the region as a whole.” (Pg. 48.) The regional welfare doctrine, in the words of the court, states that exercise of the police power “is valid ‘if it is fairly debatable that the restriction in fact bears a reasonable relation to the general welfare.” (Pg. 48.) In rebutting defendants’ arguments that the local government’s decision could not be second-guessed, the court cited Associated Home Builders v. City of Livermore (1976) 18 Cal. 3d 582, the seminal case on the regional welfare doctrine. That court emphasized that although deference is given to local government, “judicial deference is not judicial abdication.” In conclusion, the court found that the County might have exceeded its police power, but it was for the trier of fact to decide whether the evidence proved that Measure E did not bear a reasonable relation to the general welfare.
The federal Commerce Clause vests the power to regulate interstate commerce in Congress. The U.S. Supreme Court has held that the negative implication of the commerce clause is that there is a limitation on the power of states and local governments to interfere with interstate commerce; this doctrine is called the negative or dormant commerce clause. Initially, the court in this case had to figure out whether the regulation of biosolids had a substantial effect on interstate commerce, such that it was covered by the commerce clause. The court held that Measure E would have a substantial effect on interstate commerce because waste disposal sites are scarce and it is likely that the waste would be taken to the neighboring state of Arizona.
Under the negative commerce clause analysis, the next step is to evaluate whether Congress has expressly approved the regulation in question. The County argued that the Clean Water Act provides authorization for Measure E because it permits local entities to determine the “manner or disposal or use of sludge.” (33 U.S.C. § 1345(e).) The court disagreed. The court found that the statute did not specifically authorize a regulation eliminating land application within the locality’s boundaries. Because the constitutional test requires explicit authorization, Measure E was still subject to the negative commerce clause, according to the court.
As is true of most constitutional tests, the court had to determine what level of scrutiny applied. Under the commerce clause, if the regulation discriminates against interstate commerce, either in purpose or effect, strict scrutiny applies. Otherwise, the lower threshold of rational basis applies, in which the plaintiffs must prove that the regulation was not rationally related to a legitimate governmental interest. As with any test involving reasonableness, the burden on the plaintiffs is much higher under the rational basis test.
Here, the court found that although the purported purpose of Measure E was to protect the health and safety of the County’s citizens, the effect of the measure discriminated against interstate commerce. Since the County gave its biosolids to a private contractor that then sold it to private individuals as fertilizer, the County would not be affected by the regulation. Additionally, the measure only affected the unincorporated areas of the County – the only areas used by the plaintiffs to dispose of their biosolids. The incorporated areas could still continue land application within their boundaries. For these reasons, the court held that the measure had the effect of discriminating against interstate commerce, and therefore, the defendants had to show that Measure E “was the only available means to address its legitimate environmental concerns.” (Pg. 31.)
It is not surprising that the defendants were not able to overcome this burden. As the court stated, “Kern could simply have regulated the volume, location, and quality of the biosolids it allowed to be land applied.” (Pg. 31.) Since there were other available means, the court held that Measure E violated the commerce clause and was unconstitutional.
State Constitutional Preemption
Plaintiffs finally contended that the California Integrated Waste Management Act (Public Resources Code section 40000 et seq.) constitutionally preempts Measure E. The California Constitution permits local governments to pass ordinances and regulations as long as they are “not in conflict with the general laws.” (Cal. Const., art. XI, § 7.) A conflict exists “if the ordinance duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication.” (Morehart v. County of Santa Barbara (1993) 7 Cal.4th 725.)
The California Integrated Waste Management Act (CIWMA) required “local governments to adopt waste management plans to divert 25% of the solid waste produced in their jurisdictions from landfills by 1995 and 50% by 2000.” The court found that land application of biosolids constituted recycling solid waste under the definition given in the CIMWA, and therefore, land application helps accomplish the purpose of the act. By eliminating land application within the county, the court held that Measure E contradicted the goal of the CIMWA and was, therefore, preempted.
Since the court found in favor of the plaintiffs on the commerce clause claim and the state preemption claim, the court held that judgment should be entered for the plaintiffs, instead of waiting to enter judgment until the police powers claim was resolved. The County has 30 days from the entry of judgment to file an appeal with the Ninth Circuit Court of Appeals.
Cori Badgley is a clerk with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.