On November 28, 2016, Judge Lloyd Hicks of the Tulare County Superior Court overturned Kern County’s ban of the land application of biosolids (also known as treated sewage sludge) on land located in unincorporated Kern County.  The court found for the plaintiff group, including County Sanitation District No. 2 of Los Angeles County, the City of Los Angeles, and the California Association of Sanitation Agencies, after years of litigation on this ban.

A decade after Kern County voters passed Measure E, the “Keep Kern Clean Ordinance of 2006,” the court invalidated the measure for two reasons:  (1) it was preempted by the California Integrated Waste Management Act (CIWMA); and (2) it was an invalid exercise of Kern County’s police powers because it did not have a factual basis in protecting the public welfare.  The invalidation of this measure allows local agencies and cities to resume applying biosolids to land in Kern County as fertilizer for numerous human food crops and livestock feed crops.

The court first found that state law impliedly preempted Measure E.  The CIWMA requires local governments to promote and facilitate the recycling, reuse, and composting of solid wastes.  This includes biosolids, since they are the treated solid or semisolid products of sanitary wastewater treatment processes.  Historically, these biosolids had been disposed of primarily in landfills.  Thus, in order to comply with specific percentage reductions in the CIWMA, and the express requirement to promote recycling and reuse, local governments turned to the land application of biosolids.  The court noted that this use of biosolids has had a beneficial impact on land, including turning previously unfarmable land into productive agricultural land after the integration of biosolids over time.

The court noted that there were two theories through which the CIWMA preempts Measure E.  One is through “obstacle preemption,” which applies where an ordinance creates a significant obstacle to the achievement of a state law’s purpose.  Because Measure E imposed a complete ban on the land application of biosolids, it foreclosed the ability of Kern County itself, as well as other local agencies and municipalities in California, from using land application in Kern County as a means of complying with the CIWMA’s requirement to promote recycling and composting of solid waste.  This creates an impediment to compliance with a state law such that Measure E is preempted.

Another means of preemption is direct conflict preemption:  that is, Kern County cannot comply with Measure E without violating the CIWMA and vice-versa.  Kern County is under the same CIWMA mandates to promote recycling and composting, and to foster feasible recycling options.  Land application of biosolids is a feasible and popular form of reducing landfill waste streams.  Thus, the court determined that Kern County’s direct prohibition of an accepted and regulated form of recycling prevents it from living up to its statutory mandate to promote recycling and reuse of solid wastes under the CIWMA.

The court also invalidated Measure E because it is an invalid exercise of Kern County’s police powers.  An ordinance like Measure E must bear a real and substantial relationship to the public welfare for it to be valid.  Kern County claimed that Measure E was necessary to protect public health, particularly to prevent groundwater contamination due to the land application of biosolids.  But the court found that there was no evidence to support the idea that land application of biosolids presents any harm to human health or groundwater.  In fact, evidence shows the exact opposite.  The court acknowledged that studies showed no human health risks associated with human food crops grown on land on which biosolids were used.  Animal products from livestock raised on crops grown on land where biosolids were used were also found to pose no risks to humans.  There was no data to show that so-called “emerging contaminants” migrate from biosolids to groundwater underlying farms where biosolids were applied.  Based on this, the court found that “[t]he overwhelming weight of evidence is that there is no basis in fact for any determination that land application of biosolids poses any risk to Kern County residents.”  The lack of evidence demonstrates that there is no relationship between Measure E and the public welfare, making Measure E an invalid exercise of Kern County’s police power.

Although the court invalidated Measure E based on the reasoning discussed above, it did not agree with the plaintiffs’ other arguments that it violated the Commerce Clause of the United States Constitution, or California’s “implied commerce clause.”  In short, this was because the court found that Measure E did not create an advantage for economic activity within Kern County at the expense of commercial activity outside of the county.  Rather, it found that Measure E created a “disadvantage to all,” which does not present the requisite intent to discriminate necessary for a Commerce Clause violation.

For more information on this decision, please contact Brenda Bass at bbass@somachlaw.com.

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