Summary of a Recent
Judicial Development in
Environmental Law

County Ordinance Banning Land Application of Biosolids in
Unincorporated Areas Violated the Commerce Clause

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In City of Los Angeles v. County of Kern, 509 F. Supp. 2d 865 (C.D. Cal. 2007), the United States District Court for the Central District of California granted in part and denied in part the parties' cross motions for summary judgment. The plaintiffs sued the County challenging the validity of a County ordinance banning the land application of biosolids in unincorporated areas. Although the measure survived rational basis scrutiny under the Equal Protection Clause (U.S. Const., amend. XIV, § 1), the court held that it violated the Dormant Commerce Clause (U.S. Const. art. I, § 8, cl. 3) because the measure had a discriminatory effect on interstate commerce and failed the strict scrutiny analysis. Ultimately, the court granted the plaintiffs' motion for entry of judgment, concluding that the plaintiffs' request had merit and there was no just reason to delay judgment.

Background

The plaintiffs (City of Los Angeles, Orange County Sanitation District, and County Sanitation District No. 2 of Los Angeles County) generated large amounts of treated sewage sludge (biosolids). Id. at 868-69. The biosolids were shipped to unincorporated farming areas to be land-applied as fertilizer. Id. at 869. In 2006, a state senator sponsored Measure E, a bill that "sought to ban land application of biosolids in the unincorporated areas of the County." Id. County voters overwhelmingly passed Measure E. Id. The measure "impose[d] relatively few burdens on in-county interests," because the County shipped its biosolids "to a local composting company for sale to private firms out of its jurisdiction." Id. Additionally, "local cities continue[d] to apply biosolids on land in their incorporated areas which [were] outside of Kern County's jurisdiction," while the measure "effectively force[d] [p]laintiffs out of the County." Id.

The plaintiffs filed suit against the County in an attempt "to preserve their biosolids recycling programs." Id. They alleged that the measure violated a number of constitutional and statutory provisions. Id. On October 24, 2006, the instant court preliminarily enjoined the enforcement of Measure E. Id. In granting the preliminary injunction, the court concluded that the plaintiffs,

though not likely to succeed on their Equal Protection claim, demonstrated irreparable harm and a likelihood of success on their claims that Measure E (1) violated the dormant Commerce Clause; (2) was preempted by the California Integrated Waste Management Act[]; and (3) exceeded Kern's police power under the California Constitution.
Id.

The parties then cross-motioned for summary judgment on all claims. Id.

Arguments

The plaintiffs argued that the measure violated the Equal Protection Clause because it was irrational and violated the Dormant Commerce Clause because it had a discriminatory effect on interstate commerce. Id.

Analysis and Holdings

The court first addressed the City's Equal Protection argument. Id. at 878. Because this case did not involve a fundamental right or suspect class, the court's equal protection analysis involved only a singular inquiry: whether there was a "rational relationship between the disparity of treatment and some legitimate governmental purpose." Id. Therefore, the City had the burden "to negate every conceivable basis that might support the challenged statute." Id. The court held that the City's Equal Protection claim failed as a matter of law because the measure "rationally further[ed] legitimate local interests in guarding against potential environmental harm and nuisance associated with biosolids," and because the plaintiffs "failed to demonstrate that these purposes were merely pretextual." Id. at 869.

Then the court addressed the City's Commerce Clause argument. Id. at 881. The Commerce Clause gives Congress "power to regulate commerce and limits the power of states and local government to adopt ordinances that interfere with interstate commerce . . . ." Id. at 881-82. Laws that discriminate against interstate commerce are subjected to strict scrutiny. See id. at 882. The court subjected Measure E to a strict scrutiny analysis because biosolids were articles in interstate commerce, Congress did not exempt Measure E from Commerce Clause limitations, and the measure had a discriminatory effect on interstate commerce. Id. at 882-84. For the measure to survive strict scrutiny, the County had to demonstrate that the measure "was the only available means to address its legitimate environmental concerns." Id. at 887. The County made no such demonstration; therefore, the court held that the measure violated the Commerce Clause. Id.

The case was decided on August 10, 2007.