A Kern County voter initiative prohibiting the disposal of sewage sludge on fields in the county has new life. The Ninth U.S. Circuit Court of Appeals overturned a federal District Court judge's ruling that the initiative violated the United States constitution's commerce clause.
 
The unanimous three-judge appellate panel held that the alleged harm caused by the initiative is not even "marginally related" to the purpose of the commerce clause. The suit, which was filed by Southern California sanitation agencies, sludge trucking companies and Kern County landowners, was returned to the District Court for the Central District of California for further consideration.
 
Sewage sludge is the common name for the organic solids leftover from the treatment of municipal wastewater. For decades, treatment plant operators either dumped the sludge in the ocean or buried it in landfills. Regulatory barriers, however, have made ocean dumping infeasible, and burial in landfills has become expensive. Since the 1990s, numerous out-of-county sanitation agencies have sent sludge to Kern County, where a handful of landowners and farmers accept the material (see CP&DR Environment Watch, July 2000). Some of these landowners and farmers consider sludge to be an organic fertilizer for farm fields, while others in the sludge trade plow the material under. But Kern County officials and residents are tired of being treated as the state's toilet, pointing out that the sludge can contain high levels of metals, as well as viruses, parasites and pathogens.
 
In 2006, Kern County voters approved Measure E, which prohibits the spraying or spreading of sewage sludge onto land in unincorporated areas. The City of Los Angeles, Orange County Sanitation Districts, the California Association of Sanitation Agencies, trucking companies and a few Kern County landowners sued to block the measure's implementation. They contended that Measure E violated the commerce and equal protection clauses of the constitution. The plaintiffs also argued that the measure was preempted by the federal Clean Water Act, the California Integrated Waste Management Act and state water law.

District Court Judge Gary Feess issued mixed rulings. He rejected the equal protection argument and dismissed claims based on the Clean Water Act and state water code. But he ruled that the initiative had the effect of discriminating against interstate commerce and therefore violated the commerce clause. He also held that the state waste management act, which mandates that at least 50% of waste be recycled, preempted Measure E.
 
In considering the appeal, the Ninth Circuit examined only the question of whether the plaintiffs – the sanitation agencies, trucking companies and landowners – could make claims based on the commerce clause. The "negative" or "dormant" commerce clause, the court explained, prohibits states from "advancing their own commercial interests by curtailing the movement of articles of commerce, either into or out of the state." The "recyclers," as the court collectively called the plaintiffs, contended that Measure E violated the commerce clause because it would force them to haul sludge to Arizona if they could not dispose of it in Kern County. But the appellate panel determined that the "recyclers miss the point."
 
"The interest the recyclers seek to secure is their ability to exploit a portion of the intrastate waste market – they want to be able to ship their waste from one portion of California to another. But as we have said, the ‘chief purpose underlying the dormant commerce clause is to limit the power of states to erect barriers against interstate trade,'" Justice Diarmuid O'Scannlain wrote, citing Individuals for Responsible Gov't v. Washoe County, 110 F.3d 699, 703 (1997). In that case, the Ninth Circuit upheld a Washoe County, Nevada, ordinance mandating residents subscribe to garbage collection service, even though the ordinance would apparently end the practice of residents hauling their own trash to a garbage dump in California.

"Nothing in Measure E hampers the recyclers' ability to ship waste out of state," O'Scannlain continued. "Likewise, no recycler claims to apply out-of-state waste to land in Kern County. In short, Measure E in no way burdens the recyclers' protected interest in the interstate waste market. We decline to expand the zone of interests protected by the clause to purely intrastate disputes."

"[F]inancial injury must  somehow be tied to a barrier imposed on interstate commerce. The recyclers here have not established that requisite link," O'Scannlain wrote.
 
The Ninth Circuit directed Judge Feess to reconsider his conclusion that the state waste management law preempts Measure E. "[W]e are left with a complex question of state law preemption. Because our dismissal of the federal constitutional claim may materially alter the district court's decision to exercise supplemental jurisdiction over the preemption claim, we vacate its judgment and remand the state law claim for reconsideration," the court concluded.

The Case:
City of Los Angeles v. County of Kern, No. 07-56564, 2009 DJDAR 13520. Filed September 9, 2009.
The Lawyers:
For Los Angeles: Thomas Hixon, Bingham McCutchen, (415) 393-2000.
For the county: Steve Mayer, Howard, Rice, Nemerovski, Canady, Falk & Rabkin, (415) 434-1600.