On September 9, the U.S. Court of Appeals for the Ninth Circuit released a decision  in Los Angeles et al. v. Kern County, a case involving a local ordinance ban on the land application of biosolids that was challenged by a number of NACWA member agencies in Southern California. The court determined that the plaintiffs did not have sufficient legal standing to challenge the ban based on the dormant Commerce Clause of the U.S. Constitution. This Alert summarizes the court’s decision and its implications for NACWA members. A copy of the decision is available in the Litigation Tracking section of NACWA’s Member Pipeline at www.nacwa.org. Please feel free to contact NACWA’s General Counsel Keith Jones at 202/533-1803 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it with any questions regarding this case or NACWA’s ongoing legal activities.

I. Background

The case began in 2006 when voters in Kern County, California approved a ban which would have prevented out-of-county utilities from land applying biosolids at agricultural sites within the county. This ban would have significantly impacted a number of major urban municipalities in Southern California that have safely land applied their biosolids to farms in Kern County for many years, including NACWA member agencies the City of Los Angeles, the Orange County Sanitation District, and Sanitation District No. 2 of Los Angeles County. These agencies, along with a number of other plaintiffs, filed suit in the U.S. District Court for the Central District of California requesting an injunction against the ban, arguing that the ban ran afoul of both the dormant Commerce Clause inferred from the U.S. Constitution, which prohibits legislation that unfairly discriminates against interstate commerce, and the California Integrated Waste Management Act, which sets certain goals for the recycling of waste material. The District Court ruled in the plaintiffs’ favor on both claims and granted the injunction. Kern County then appealed the decision to the Ninth Circuit.

During briefing before the appeals court, NACWA filed an amicus curiae  brief with the court in support of its member agencies and the plaintiffs. The brief argued the Association’s long-standing position that individual municipalities should be able to choose the method of biosolids management that works best for their communities, including the option of land application. Additionally, it discussed the critical role land application plays for many clean water utilities across the country to meet their environmental mandates and outlined the difficulties these utilities would face if land application bans became widespread. The brief also highlighted the safety and agricultural benefits of recycling biosolids through land application when done in compliance with state and federal regulations and stressed the primacy of state and federal regulatory efforts over misguided local attempts to enact land application bans. The court heard oral arguments in March 2009 and, after asking for additional briefing on the issue of standing, released a decision on September 9.

II. The Ninth Circuit Opinion

The Ninth Circuit’s opinion focused specifically on the issue of whether the plaintiffs had standing to bring a federal claim under the dormant Commerce Clause. The dormant Commence Clause is an inferred legal doctrine from the Commerce Clause of the U.S. Constitution and has been used by courts to strike down legislation that improperly burdens or discriminates against interstate commerce. The plaintiffs in the case argued that the Kern County biosolids land application ban would have an impact on both in-state and out-of-state business, thus negatively impacting interstate commerce in an impermissible manner. The Ninth Circuit , however, disagreed, finding that the plaintiffs in the case were not in the "zone of interest" of the dormant Commerce Clause because the biosolids at issue did not cross state lines and none of the plaintiffs were from outside of California. The court’s decision further focused on the narrow fact that the Kern ban on its face does not seek to regulate interstate commerce. Although the court ruled that the plaintiffs could not pursue their claim based on the federal constitution, the Ninth Circuit did not address or undercut the merits of the lower court’s Commerce Clause ruling that the Kern County ban discriminates against out-of-county biosolids. The appeals court also did not address the lower court’s determination that the Kern County ban violates California’s Integrated Waste Management Act (IWMA). As a result, the injunction issued against the ban by the lower court will remain in place. The Ninth Circuit has remanded the case to the trial court for additional deliberation regarding the IWMA claim.

NACWA and the plaintiffs are disappointed with the court’s decision regarding the federal Commerce Clause claim and believe it was wrongly decided. Among other things, the court’s reasoning failed to take into account existing federal case law that defines interstate commerce to include business carried on in-state that has some minimal impact or relation to interstate commerce. The court also ignored evidence produced by the plaintiffs that the Kern ban would likely result in out-of-state shipments of biosolids from California to Arizona, thus creating an impact on interstate commerce. The plaintiffs are currently considering possible next steps in reaction to the court’s ruling, and NACWA stands by to assist them in any manner possible.

III. Impact on NACWA Members

This decision will have no immediate impact on NACWA members, including those that recycle their biosolids through land application. As stated above, the existing injunction against the ban will stay in place pending further review by the federal District Court in California and the three NACWA members that are parties to the litigation may continue to recycle their biosolids via land application in Kern County. Additionally, the decision does not mean that county or local government restrictions on biosolids management can no longer be challenged in federal courts in the Ninth Circuit or elsewhere in the country. Instead, the case suggests that any future challenges in federal courts to local biosolids ordinances should pay particular attention to the potential impacts on interstate commerce in order to trigger federal Commerce Clause protections. NACWA will continue to keep the membership updated on any developments as this case moves forward.