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A Trial On Striking Down Biosolids Ban on Two Constitutional Grounds Win for City of Los Angeles

Following a two week bench trial the Tulare County, California Superior Court has struck down a voter initiative passed in 2006 in Kern County that banned the land application of biosolids (treated municipal wastewater sludge) to farmland in Kern County. Judge Lloyd Hicks wrote in a 48 page opinion that 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.” City of Los Angeles v. Kern County, 2016 WL 7175653, 2016 Cal Super Lexis 9727 (Tulare Co. Super. Ct. Nov. 28, 2016).  The case is believed to be the first trial focused on the benefits and safety of recycling biosolids to farmland, a practice used by many of America’s largest cities for decades. 

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 long standing use of biosolids as a fertilizer and soil amendment on farms in Kern County. Los Angeles owns a 4,700 acre farm in Kern where it has grown feed crops with the aid of biosolids for over 20 years. Since 2006, the voter initiative (“Measure E”) has been under a series of injunctions pending trial. 

On the police power claim, the Court ruled in its statement of decision 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…. 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….There is no evidence of risk to human health.” The Court concluded that because the biosolids ban bore no substantial relation to the public welfare, it was an invalid exercise of the county’s police power under the California Constitution. 

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…. Measure E is in direct conflict with, and inimical to, CIWMA, and is therefore, for that reason, also void. . . . 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.” 

The City of Los Angeles in its media statement said that it “welcomed the decision and looks forward to continuing to recycle biosolids at its farm to grow feed crops used by Kern County dairies and to benefit the millions of City residents who depend on economical and environmentally sound wastewater management.” 

National stakeholders have applauded the ruling. The National Association of Clean Water Agencies (“NACWA”) stated that “This litigation involved the first full-blown bench trial focused on biosolids 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.” 

The case opinion is reported at City of Los Angeles v. Kern County, 2016 WL 7175653, 2016 Cal Super Lexis 9727

© 2020 Beveridge & Diamond PC National Law Review, Volume VI, Number 365


About this Author

James M. Auslander Natural Resources & Project Development Attorney Beveridge & Diamond Washington, DC

James (Jamie) M. Auslander's legal practice focuses on project development, natural resources, and administrative law and litigation.

Mr. Auslander co-chairs Beveridge & Diamond’s Natural Resources and Project Development Practice Group, including its Energy Practice. He focuses on complex legal issues surrounding the development of oil and gas, hard rock minerals, renewable energy, and other natural resources on public lands onshore and on the Outer Continental Shelf. He frequently litigates appeals before federal courts and administrative bodies regarding rulemakings, permits...

James B. Slaughter Environmental Litigation Attorney Beveridge & Diamond Washington, DC

Jimmy Slaughter has a national practice in environmental, toxic tort, and constitutional litigation.

Named a Runner-Up for American Lawyer’s Litigator of the Week three times in 2019 and 2020, Jimmy’s recent accomplishments include securing preemption of a major city’s air ordinance, defeating at hearing a $5 million enforcement order, and winning a complete dismissal of a putative nuisance class action against a landfill. Jimmy also recently scored a rare equitable estoppel ruling against a major local government, allowing his client to challenge numerous provisions of a conditional use permit. Chiquita Canyon LLC v. Los Angeles County, 2019 WL 6122160 (L.A. Co. Super. Ct. 2019).

Other achievements include securing a unanimous win in the Pennsylvania Supreme Court defeating toxic tort claims, Gilbert v. Synagro Central, 131 A.3d 1 (Pa. 2015) and a plaintiffs judgment after a two week trial on constitutional challenges to a voter initiative banning land application of biosolids, City of Los Angeles v. Kern County, 2017 WL 1292822 (Tulare Co. Cal. Super. Ct. 2017). Jimmy also scored three wins on preemption claims in 2013 and 2014 before the California Court of Appeal and the Washington Court of Appeals involving solid waste issues. Jimmy has tried numerous jury and bench trials and argued cases before many federal and state appellate and trial courts across the country, including the California, District of Columbia, Pennsylvania, and Virginia supreme courts. See, e.g., Cormier v. D.C. WASA, 2011 WL 4543680, 84 A.3d 492 (D.C. 2013) (trial win and appellate affirmance, defeating tort claims of corrosive drinking water).

Jimmy is recognized as a leader in mass tort, class action and preemption litigation involving solid waste, drinking water, wastewater, and biosolids. His representation of waste and recycling companies, cities, farms, contractors, and trade associations spans toxic tort, enforcement defense, and complex constitutional and administrative law issues regarding competing federal, state, and local authority. Jimmy speaks regularly at meetings of the American Bar Association, the National Waste and Recycling Association, the Water Environment Federation, its state affiliates, and the National Association of Clean Water Agencies. He works with the country’s top scientists and engineers to defend his clients in the courts and before government agencies.

Toxic tort defense is a major part of Jimmy's practice, including defense of wrongful death, serious personal injury, and nuisance claims. He has handled the country’s most significant cases involving alleged public health impacts from land application of biosolids and from allegations of lead in drinking water. Jimmy regularly and successfully challenges plaintiffs’ medical and causation experts under Daubert and Frye.

Jimmy is nationally recognized for his success in preemption and commerce clause challenges to discriminatory and burdensome local legislation. He led a coalition of electronics trade groups and manufacturers in challenging the constitutionality of New York City's recycling and product-take back mandates. After Jimmy filed a motion for preliminary injunction, the City agreed to stay implementation of the law. He also led the successful efforts of the City of Los Angeles to overturn a local ban on the City’s use of its biosolids on California farmland as a fertilizer on Commerce Clause and other constitutional grounds.