Kern wins another round in sludge lawsuit
| Wednesday, Sep 09 2009 05:23 PM
Last Updated Wednesday, Sep 09 2009 05:25 PM
Kern County claimed another victory Wednesday in its legal battle with the city of Los Angeles and Orange County over Measure E, which bans the spreading of sewage sludge on unincorporated county land.
The fight over sludge -- treated human and industrial waste also referred to as biosolids -- will now return to the lower U.S. District Court, where Kern's ban could still face major challenges.
But for now, a three-judge panel of the 9th Circuit Court of Appeals has given Kern County lawyers hope for an ultimate victory.
Judges Dairmuid O'Scannlain, Pamela Rymer and Kim Wardlaw ruled that Kern County's sludge-spreading ban does not violate the interstate commerce clause of the U.S. Constitution.
And they vacated an earlier judgment by U.S. District Court Judge Gary Feess that rendered Measure E invalid.
"We're very pleased with the court's decision. We didn't think that Feess had it right in the first place and we're glad that the 9th Circuit has vindicated our position on the commerce clause," said Assistant Kern County Counsel Steve Schuett. "This is another step in upholding the will of the Kern County voters."
Kern's ban was designed to head off environmental concerns about sludge.
Requests for comment from the office of Los Angeles City Attorney Rocky Delgadillo were not returned Wednesday afternoon.
Technically, Measure E - passed by local voters in 2006 - is now in effect and ongoing sludge spreading by Los Angeles-area entities violates that law, Schuett said.
But he said the county is not likely to enforce Measure E until the final challenges to the law have been resolved.
"Until we get some clarity from the court, I don't think we will go out and close down Green Acres (the city of Los Angeles farm) or Shane Magan (operator of Honeybucket Farms)," Schuett said.
Some major what-if scenarios still loom in the case:
Judge Feess will now have to decide whether he has jurisdiction over two remaining challenges to Measure E:
* Los Angeles' claim that the measure defeats state recycling goals.
* The accusation that Kern County overstepped its police powers by passing a measure that damages a neighboring community's commerce.
Both are state law issues, Schuett said. Feess is a federal judge.
If he keeps the case, Feess likely rule again that Measure E defeats state recycling goals - killing the Measure E ban once again, Schuett said.
Or Feess could rule the issues should be handled in state court, and Los Angeles and its allies would be required to refile their suit, Schuett said.
The core of Wednesday's ruling dealt with the issue of interstate commerce.
During a March court hearing, Thomas S. Hixson, an attorney for Los Angeles, argued that Measure E impairs interstate commerce by forcing the southland jurisdictions to ship their sludge to Arizona.
The judges were critical of that argument from the bench in March.
"So what?" said Rymer. Trucking a product to another state is, she said, "a boon (to interstate commerce), not a bane."
Wednesday's ruling upheld that approach, saying the dispute between Kern, Los Angeles and Orange was purely a conflict between governments within the same state.
"Nothing in Measure E hampers the recyclers' ability to ship waste out of state," O'Scannlain wrote. "In short, Measure E in no way burdens the recyclers' protected interest in the interstate waste market."
