ARCHIVE SITE - Last updated Jan. 19, 2017. Please visit www.NACWA.org for the latest NACWA information.
City of Los Angeles v. County of Kern
On December 5, 2016, a California state court issued a positive decision striking down Measure E, a local voter initiative passed in 2006 that banned the land application of biosolids to farmland in Kern County bringing to an end litigation that has spanned nearly a decade.
NACWA Member Agency the City of Los Angeles led a coalition of Southern California public agencies, farmers, and contractors in the lawsuit against Kern County to protect their longstanding use of biosolids as a fertilizer and soil amendment on farms in Kern County. The City owns a 4,700-acre farm in Kern County, where it has grown feed crops with the aid of biosolids for more than 20 years.
NACWA members City of Los Angeles, Orange County Sanitation District, and Sanitation Districts of Los Angeles County have recycled biosolids to farmland in Kern County since the 1990s. In 2000, the City of Los Angeles purchased a 4,700-acre farm in Kern County (named Green Acres Farm) in order to ensure successful land application and regulatory compliance. Green Acres Farm uses biosolids for fertilizer and wastewater effluent for irrigation to grow feed crops for local dairies.
Kern County in 2002 mandated that only Class A EQ biosolids could be applied to Kern County and the generators complied with the mandate, at great expense. In 2006, a county-wide voter initiative – Measure E – banned all land application, Class B and A. The Southern California agencies, and their farmer and contractor allies, promptly sued in federal court, obtaining a preliminary injunction blocking Measure E, and in 2007 secured summary judgment and a permanent injunction against Measure E. City of Los Angeles v. Kern County, 462 F. Supp. 2d 1105 (C.D. Cal 2006); 509 F. Supp. 2d 865 (C.D. Cal. 2007). The district court ruled that Measure E violated the Commerce Clause of the U.S. Constitution by discriminating against out-of-county biosolids (Kern’s independent cities could continue to land apply biosolids). It also found that Measure E was preempted by California’s recycling laws, which require local governments to promote recycling, including land application of biosolids.
On Kern’s appeal, the U.S. Court of Appeals for the Ninth Circuit reversed the decision on procedural grounds, ruling that the Plaintiffs lacked standing to sue in federal court because the biosolids did not cross state lines. City of Los Angeles v. Kern County, 581 F.3d 841 (9th Cir. 2009). A more detail analysis of the court’s decision can be found in Legal Alert 09-03. NACWA and major cities relying on land application filed amicus briefs supporting the Plaintiffs’ certiorari petition to the U.S. Supreme Court; the petition was denied in 2010.
After dismissal of the federal case, the municipal plaintiffs re-filed the case in state court in 2011, and promptly secured a new preliminary injunction against the Measure E ban. Kern County appealed the preliminary injunction, and the California Court of Appeal issued a strong decision in February 2013 upholding the preliminary injunction and supporting biosolids land application, echoing arguments made by NACWA in its amicus brief. City of Los Angeles v. Kern County, 214 Cal. App. 4th 394 (2013). In July 2014, the California Supreme Court overturned the appellate court decision on a procedural issue unrelated to the underlying legal question regarding the Kern County ban and remanded the case to the trial court. The Court of Appeal’s finding that the Kern County ban is illegal remains the law of the case, and the preliminary injunction against Measure E remained in place. This ruling marked an important win for the municipal plaintiffs, as well as for the clean water community nationally, in defending biosolids land application. The precedent has been influential in supporting state law preemption of local anti-biosolids ordinances. Washington Department of Ecology v. Wahkiakum County, 337 P.3d 364 (Wash. App. 2014).
After the remand from the California Supreme Court, the state trial court in the neutral venue of Tulare County ruled that the lawsuit was timely under state law and should proceed to trial to determine all legal and factual issues based on a full evidentiary record. Discovery occurred in 2015, with over twenty depositions and extensive soil, biosolids, and groundwater sampling at Green Acres Farm.
Trial Court Decision
In its December 2016 decision, the California Superior Court ruled that Measure E “is invalid and void for all purposes, for the dual reasons that it exceeds Kern’s police power authority and is preempted by state law.” On the police power claim, the court ruled that “the overwhelming weight of the evidence is that there is no basis in fact for any determination that land application of biosolids poses any risk to Kern County residents, let alone a real and substantial risk that would be alleviated by banning such land application.” The court further held that “Los Angeles has met its burden of producing evidence to the effect that there is no basis in fact for Measure E’s public welfare claims” and “there is no evidence of risk to human health.”
On the preemption claim, the court ruled that the California Integrated Waste Management Act (CIWMA), which requires that all local governments in California promote and maximize recycling, was controlling over a local voter initiative and thus preempted Measure E. The Court held that “Measure E prohibits what CIWMA requires.” Thus, “Measure E is in direct conflict with, and inimical to, CIWMA, and is therefore, for that reason, also void.”
Significance of Ruling
This litigation involved the first full-blown bench trial focused on biosolid safety. The ruling is a victory not only for the City of Los Angeles and other municipal utilities that challenged Measure E, but for utilities across the country that can use this strong legal precedent to protect biosolids land application as an economical and environmentally sound wastewater management practice.
NACWA was actively involved in earlier stages of the litigation to support our California members and defend the practice of land application, and is pleased to have helped achieve this important outcome.
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