Biosolids Ban Struck Down in Kern County
After a decade of legal battles, the City of Los Angeles and other biosolids generators in southern California have won a major victory for biosolids in Kern County.
On December 5th, Tulare County Superior Court Judge Lloyd Hicks issued his decision, ruling in favor of the biosolids management plaintiffs who had argued that the Kern County ban on biosolids was illegal. He wrote that so-called "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."
Greg Kester of the California Association of Sanitation Agencies (CASA), said "The decision is well written. The Judge really understood and articulated well the issues. He recognized that if Kern were to prevail, it could have a snowball effect in other counties. Congratulations and appreciation go to the City of Los Angeles, Orange County Sanitation Districts, Los Angeles County Sanitation Districts, and trucking & farm interests who supported this case. This is a large victory for all well-managed biosolids products & programs."
James Slaughter (Beveridge & Diamond), a leading legal expert on biosolids management who helped litigate the case for the biosolids plaintiffs, emphasized that "this was a full-blown trial; it included evidentiary hearings on the safety of land application. Science is on the side of biosolids, and the Court heard the full science. Kern County had a lot of resources and fought hard, led by one of the biggest law firms in the country and a strong team trying to stop biosolids use. Now those opponents have had their day in court. Biosolids practitioners across the country can point to this decision."
Indeed, Mark Nations, counsel for Kern County, was quoted in the Bakersfield Californian saying "I feel like we had a fair hearing. I think the judge's ruling was thorough." He noted that the Kern County Supervisors will be considering whether or not to appeal. "What we have to determine now is if he [Judge Hicks] made any errors on the application of the law." Observers of the case do not expect an appeal, because all the potential legal issues have been addressed over the past decade, and the weight of evidence regarding the substantive biosolids issues was strongly in support of the Judge's ruling.
As noted in Courthouse News, Judge Hicks discerned that the Kern County ban "had been enacted out of 'antipathy' toward the sources of the biosolids, not because they actually are dangerous."
Mr. Slaughter explained the broad significance of the ruling:
- "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 . . . . 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.'"
- "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.'"
- "There are many strong findings of fact in this decision," making it a useful resource for those seeking corroborating evidence of the safety of biosolids land application.