Measure E is once again on life support after a Tulare County Superior Court judge said from the bench Thursday morning that he would grant Los Angeles lawyers' request to put Kern County's ban on the land application of sewage sludge on hold while a nearly five-year court fight over the 2006 law continues.
Judge Lloyd L. Hicks upheld his tentative ruling against the Kern County ban, said Kern's Chief Deputy County Counsel Mark Nations.
"We made them bleed a little bit," Nations said.
But Hicks found that Kern County's law was likely to lose in a full court battle and that the costs Los Angeles would suffer from not being able to spread its treated human and industrial waste on Kern County farmland outweighed any perceived harm from flies, odors or leeching of the sludge into groundwater.
Nations said that once the judge issues a formal ruling, Kern County supervisors will have three options in going forward with the case.
They can let the case proceed as normal in Hicks' court and try to pull together enough evidence to convince Hicks that his approach to the case is incorrect. But there isn't much confidence on the Kern County legal team that it will win before Hicks.
"Unless we can come up with some really hard evidence, I don't see him changing this mind," Nations said.
The other two options involve moving beyond Hicks to state appellate court.
Kern County can do that, Nations said, by asking Hicks to accelerate the trial and reach a decision quickly.
Now that Measure E is on hold, Nations said, "L.A. has no incentive to do anything. We don't want the case to languish in court."
The third option is to cut to the chase and appeal the injunction ruling immediately.
If, Nations said, Kern can get an appeals court panel to trump the judicial reasoning Hicks based the injunction on, it would reclaim the legal upper-hand.
Hicks argued in his tentative ruling that Kern County voters did not fairly consider the impact that banning the land application of treated sewage sludge, also called biosolids, would have on Los Angeles' growing need to dispose of the solid material that comes out of its wastewater treatment plants in the cheapest and environmentally acceptable manner.
"It's better to compost it and it's even better to burn it," Nations said. "Composting is something they could do today."
He said a report prepared for Los Angeles indicates that the Liberty Composting facility in Kern County has the capacity to take the material immediately. And Liberty is also working to get approval for a plant that would burn biosolids to produce energy.
"I don't think the citizens of Kern County should be burdened because of Los Angeles' budget problems," Nations said.
Calls to the Los Angeles City Attorney's office Thursday morning were not immediately returned.
Kern County voters passed Measure E by an overwhelming margin in 2006.
Los Angeles city, county and Orange County governments, and the businesses that haul and spread the treated waste for them, sued in U.S. District Court.
While Los Angeles originally won in the trial court, that victory was overturned on appeal and the federal case against Measure E was dismissed late last year.
Los Angeles then filed the current case in the state court system.