Date: February 13, 2013
Source: Beveridge & Diamond, P.C.
The City of Los Angeles won another and possibly final round in its six-year battle with Kern County over its right to dispose of biosolids (sewage sludge) on land that it owns in the county despite a county voter initiative to prevent it from doing so. The 5th District Court of Appeal in Fresno upheld a Tulare County Superior Court ruling that blocks Kern County from enforcing its Measure E, a ban on land application of treated biosolids, which was passed by county voters in June 2006, until the merits of the case are decided in the lower court. The city originally challenged Measure E in federal court on the grounds that it interfered with interstate commerce. The case later shifted to state court in 2011 when a US Circuit Court ruled that the city lacked standing to sue under the commerce clause because the case involved transfers of a commodity from one portion of the state to another. In the latest important development, the Court of Appeal unanimously affirmed a preliminary injunction against the voter initiative, allowing land application of biosolids to continue. The Court ruled that the ban was likely preempted under the California Integrated Waste Management Act and likely exceeded state law limits on the police powers of Kern County.
See also: "Court Rejects LA Petition to Send Sludge to Kern County, CA," (www.wasteinfo.com/news/wbj20101116I.htm), November 9, 2010.
See also: "Supreme Court Refuses to Hear Kern County Sludge Case," (www.wasteinfo.com/news/wbj20100601F.htm), June 1, 2010.
See also: "LA and Others Press High Court to Overturn Ban on Biosolids Disposal," (www.wasteinfo.com/news/wbj20100330D.htm), March 24, 2010.
PRESS RELEASE
February 15, 2013
Beveridge & Diamond Secures Key Appellate Victory for City of Los Angeles Protecting Land Application of Biosolids
Litigators from the Beveridge & Diamond, P.C. Washington, DC and San Francisco offices convinced the California Court of Appeal to affirm a preliminary injunction that blocks implementation of a county voter initiative that sought to halt biosolids recycling at a 4,700 acre farm in Kern County, California, owned by the City of Los Angeles. In a unanimous decision, the Fifth District Court of Appeal ruled that Defendant Kern County's ban on land application of biosolids likely exceeded the County's police powers because of the impacts of the ban on public utilities outside of Kern County that must manage biosolids through recycling. The three judge panel also ruled that the ban conflicted with and was preempted by the California Integrated Waste Management Act, which requires that localities encourage recycling practices like land application of biosolids. The court wrote that Kern County could not prohibit "a major, widely accepted, comprehensively regulated form of recycling. . . . Kern County asks us to adopt a position that would authorize all local governments to say 'not here.'"
National stakeholders have applauded the ruling. The National Association of Clean Water Agencies (NACWA) stated that "this ruling marks an important win for municipal plaintiffs in the case, as well as for the clean water community nationally." The California Daily Journal, the state's leading legal publication, featured the case in its February 15 edition and quoted Jimmy Slaughter, a Principal at Beveridge & Diamond and lead counsel for the Plaintiffs, that "this strong opinion will be a deterrent to any locality around the country that may be considering banning or overregulating the application of biosolids."
The case opinion is reported at City of Los Angeles et al. v. Kern County, 2013 Cal. App. Unpub. LEXIS 1115 (Feb. 13, 2013) and is available here: www.bdlaw.com/assets/attachments/LA%20v%20Kern%20Cal%20Court%20of%20Appeal%20Opinion%20on%20PI.pdf.
For more information, contact Jimmy Slaughter at jslaughter@bdlaw.com, Gary Smith at gsmith@bdlaw.com, or Jamie Auslander at jauslander@bdlaw.com.
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