In a victory for municipalities that recycle biosolids to farmland, Los Angeles’ sanitation district prevailed in its suit against a Kern County initiative banning land application of biosolids. See County Sanitation Dist. No. 2 of Los Angeles County, et al. v. Kern County, 2016 WL 7175653 (Tulare Co. Super. Ct. Nov. 28, 2016).  Defendant Kern County approved Measure E on June 6, 2006, prohibiting the land application of biosolids (treated municipal wastewater sludge) in unincorporated Kern County.  After a two-week bench trial, the Superior Court for Tulare County invalidated Kern County's ban on the grounds that the county had exceeded its police power and the ban was preempted by state law.

Whether Kern County exceeded its police power authority depended on whether biosolids pose a “basic public welfare” risk, impacting the health, economy and environment of the people of Kern County. After an extensive review of the history of biosolids application, the court found no evidence of a risk posed by biosolids.  Specifically, the court considered expert studies demonstrating the benefits of biosolid application to soil and a lack of documentation identifying an adverse health effect of land application, and weighed these studies against Defendant’s claims.  The court determined that Kern County’s claims were either without evidence or resulted from testimony lacking in credibility.  The court found that there was “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.” Id. at 25 (emphasis in original).

The court also determined that the California Integrated Waste Management Act (CIWMA) “requires that local agencies promote recycling and composting and maximize the use of all feasible recycling options,” and that CIWMA preempts Measure E’s ban, which is in “direct conflict with” the Act.  Id. at 20 (emphasis in original).  The court noted that the measure, “by banning a commonly used and cost-efficient method of recycling and re-use is not consistent with and is destructive of the state’s policies and requirements.” Id. at 19. It concluded that while the measure does not make compliance with CIWMA impossible, it does make compliance “more difficult and expensive” for the Plaintiffs, rendering Measure E invalid.  Id.

Beveridge & Diamond represented Plaintiff City of Los Angeles in this action.  Additional information about this decision is available on the Beveridge & Diamond website here.

This alert was prepared with the assistance of Zajeer H. Tajani.