Here Comes the Sludge – Rural California County Cannot Halt In-Flow of Southern California BiosolidsBy Linda R. Larson
A federal district court recently overturned a California county’s attempt to ban the practice of spreading treated sewage sludge , or “biosolids,” from municipalities outside of the county on farmland in unincorporated areas within the county. In City of Los Angeles v. Kern County,Judge Gary Allen Feess of the U.S. District Court for the Central District of California overturned a voter initiative that would have had the effect of preventing the City of Los Angeles, the Orange County Sanitation District, the Los Angeles County Sanitation District No. 2 and other out-of-county local governments from continuing their daily practice of sending tons of biosolids to farmlands in rural Kern County, California. The decision illustrates the potential constraints placed by the dormant federal Commerce Clause on attempts to exclude or ban unwelcome activities from other jurisdictions.
Biosolids Disposal Practices and Regulation
Like many urban areas, the City of Los Angeles, Orange County and Los Angeles County (collectively “the Southern California Cities”) generate large amounts of sewage treatment residues known as “sludge” or “biosolids” and dispose of them through what is known as “land application.” The Southern California Cities truck much of this waste to farmland in unincorporated Kern County, California, for use as fertilizer. The United States Environmental Protection Agency, after significant research by the National Academy of Sciences, has concluded that land application of such biosolids in compliance with its regulations at 40 C.F.R. §503, commonly known as the “Part 503” regulations, is safe, despite continuing uncertainties concerning the potential implications of land application on human health, plant toxicity, wildlife, and ground water.
Since 1999, the City of Los Angeles has sent about 26 tractor trailer loads a day of its biosolids to a 4,700 acre piece of land that it owns about 15 miles southwest of Bakersfield known as “Green Acres,” a functioning farm that mainly grows crops used for animal feed. The Orange County sanitation districts have sent biosolids to privately-owned Honey Bucket Farms and Tule Ranch in Kern County since 1996 for use as fertilizer and a soil conditioner, again on acreage used to grow animal feed crops. All of these operations meet the requirements of EPA’s Part 503 regulations, and all of the biosolids applied at these facilities are sufficiently low in metals and pathogens that they meet EPA’s standards for the widest use of biosolids. The district court found that if the Kern County sites were unavailable, the Southern California Cities would be required to find alternate sites, most likely in Arizona, which would significantly increase transportation costs and impost greater environmental impact from vehicle emissions due to longer hauling distances.
Kern County itself does not currently apply any of its biosolids to Kern farmland, and has not since at least 2004. Instead, the Kern Sanitation Authority currently sends its biosolids to a private contractor that processes them further and sells them as compost. No in-county government entity currently practices land application of biosolids in Kern County.
In 2006, a local California State Senator sponsored a ballot initiative known as Measure E, which sought to ban land application of biosolids in the unincorporated areas of Kern County. The purposes of Measure E were stated as follows:
There are numerous serious unresolved issues about the safety, environmental effect, and propriety of land applying Biosolids or sewage sludge, even when applied in accordance with federal and state regulations. Biosolids may contain heavy metals, pathogenic organisms, chemical pollutants, and synthetic organic compounds, which may pose a risk to public health and the environment even if properly handled … land spreading of biosolids … may cause loss of confidence in agricultural products from Kern County.
As the federal district court summarized, “The initiative campaign included colorful attacks on ‘Los Angeles sludge’ and drew on long-simmering anti-Southern California sentiment for support. There being no ‘Friends of Sludge’ to mount opposition to the initiative, the ordinance passed overwhelmingly”. Although the ban appeared to eliminate all land application of sludge in Kern County, it actually imposed relatively few burdens on in-county interests: “Without acknowledging any irony, Kern County ships its materials to a local composting company for sale to private firms out of its jurisdiction. Moreover, local cities continue to apply biosolids on land in their incorporated areas which are outside of Kern County’s jurisdiction. By contrast, Measure E would effectively force [the Southern California Cities] out of the County.”
The South California Cities’ Challenge
The Southern California Cities, along with private firms and individuals that handle the biosolids, filed suit against Kern County on a variety of constitutional and statutory grounds. In addition to state law grounds, the plaintiffs contended that Measure E violated Equal Protection and the dormant Commerce Clause of the U.S. Constitution. On cross motions for summary judgment, the district court concluded that the plaintiffs’ Equal Protection claim failed as a matter of law, but granted summary judgment to the plaintiffs on their dormant Commerce Clause claim.
The Southern California Cities contended that Measure E violated the Equal Protection Clause by treating biosolids differently than other fertilizers, which they claimed present equal if not greater public health risks. The federal district court held that Measure E did not violate the federal Equal Protection claim because it rationally furthered legitimate local interests in guarding against potential environmental harm and nuisance associated with biosolids and the Southern California Cities failed to demonstrate that those purposes were merely pretextual. Judge Feess reasoned that because fundamental rights or suspect classes were not involved, the measure would comport with the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose. This relationship exists if the legislative facts on which the classification is apparently based rationally may have been considered to be true by the governmental decision maker, and the relationship of the classification to its goal was not so attenuated as to render the decision arbitrary or irrational.
Judge Feess found that although the measure passed because of regional rivalries and animosity, “Measure E sought to address perceived pollution, and Plaintiffs were perceived polluters.” Further, to the extent the measure attempted to avoid any stigmatization of agricultural food products from Kern County, the choice to enact a blanket ban on land application was not irrational. Finally, the record also included evidence that some problems, such as the potential for offensive odors, cannot be eliminated even at the best run operations, leading the district court to confirm that Measure E rationally furthered its stated purpose of avoiding nuisances associated with biosolids.
Dormant Commerce Clause
In contrast, the district court found that Measure E could not withstand strict scrutiny under the Commerce Clause because it accomplished its legitimate environmental purpose through impermissible means. According to the district court, the Commerce Clause limits the powers of states and local government to adopt ordinances that interfere with interstate commerce even when legislating in areas of legitimate local concern, such as environmental protection. Judge Feess reasoned that because Congress has absolute authority in the regulation of interstate commerce, it may legislatively exempt local ordinances from the Commerce Clause’s restrictions, but must do so with a clear expression of such exemption. Where the Commerce Clause does apply, local discriminatory ordinances are subject to strict scrutiny and should be upheld “only if the government can demonstrate both that the law serves a legitimate local purpose and that this purpose could not be served as well by available nondiscriminatory means.”
Here, Judge Feess concluded that the elimination of land application sites in Kern County would likely lead to the diversion of biosolids to Arizona, and therefore the regulation’s economic effects were interstate in reach, and sufficient to bring Measure E into the ambit of the Commerce Clause. Judge Feess explained that the fact that Kern is a county, and not a state, did not render the Commerce Clause inapplicable: “Indeed, discrimination against out-of-county entities would, a fortiori, discriminate against out-of-state entities and therefore be subject to the virtual per se rule of invalidity.” The c ourt also rejected Kern County’s argument that Congress has specifically authorized local regulation of biosolids under the Clean Water Act.
Despite Measure E’s facial neutrality in banning all biosolids regardless of their origin, Judge Feess concluded that the initiative transgressed the Commerce Clause because its underlying purpose and effect is to discriminate against biosolids from the Southern California Cities: while excluding the Southern California Cities’ biosolids from disposal in Kern County, Measure E has virtual no impact on in-county biosolids programs, since Kern County’s wastes could continue to be composted and other cities in the county were permitted to continue land application within their corporation limits. Furthermore, there was no evidence that the Southern California Cities could use incorporated areas for their operations.
The federal district court found, based in large part on an initiative campaign with the theme of independence from Southern California bullies, that the legislation was intended to and did have a discriminatory effect against out-of-county sludge. “Measure E shifts the costs resulting from its regulations almost entirely to out-of-county interests through an initiative process that was unchecked by the operation of the normal political restraints, such as an organized local opposition. The Supreme Court teaches that this sort of discriminatory legislation transgresses the dormant Commerce Clause absent the most persuasive local justification.”
Kern County was unable to demonstrate that Measure E was the only available means to address its legitimate environmental concerns, and therefore could not meet the strict scrutiny test. The federal district court found that alternatives to a complete ban were available to the county, such as regulating the volume, location, and quality of the biosolids allowed to be land applied. Accordingly, the c ourt granted the plaintiffs’ motion for summary judgment on their Commerce Clause claim.
The federal district court’s willingness to look at the practical implications of Measure E, and to apply the dormant Commerce Clause in circumstances that are “out of line with the more usual pattern of discrimination in Commerce Clause jurisprudence” is unusual, but may become more common as urban areas attempt to export various kinds of waste to rural areas, and rural areas seek to avoid them. Kern County is considering whether to appeal the decision, and no appeal has been filed as of October 2.
For more information on solid waste and recycling issues, please contact Linda Larson.
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