August 2010, Vol. 22, No.8

Legal Perspective

Public Policy Decisions Must Be Science-Based

James K. Sullivan

Generations of research have led to a series of federal and state laws, as well as best management practices, that promote land application of biosolids as a sound practice. Without considering the science behind these national and state laws, Kern County, Calif., has rejected the practice of land application — in a decision that could have national implications.

Kern County banned biosolids land application in 2006, and recently the issue reached the U.S. Supreme Court, demonstrating the national economic, environmental, and social significance of the practice. Since the Supreme Court did not grant a hearing of the case (less than 2% of cases appealed to the Supreme Court are heard), now a California federal court will decide whether to rule on the merits of the case, City of Los Angeles v. County of Kern, 581 F.3d 841 (9th Cir. 2009), or dismiss the case altogether.

Following a consent decree in 1987 that barred the City of Los Angeles from dumping biosolids into the ocean, Los Angeles began to work with local farmers to land-apply biosolids on Kern County farms. Deeming the land application program a success, the city purchased the Green Acres farm in Kern County for approximately $10 million, with the intent to continue transporting biosolids from Los Angeles to Kern County for land application.

However, following a community action campaign, Kern County residents approved “Measure E,” a ban on biosolids land application in portions of the county, including Green Acres. The City of Los Angeles filed a lawsuit that challenges the ban, including a request for an injunction to allow land application to continue while the case is being decided. U.S. District Court Judge Gary Allen Feess agreed with the City of Los Angeles and issued a preliminary injunction on the ban.

Judge Feess stated that the county ban on land application was likely illegal on three grounds: the ban violates the Commerce Clause of the U.S. Constitution by discriminating against biosolids from metropolitan Los Angeles; it undermines California law mandating recycling; and it exceeds Kern County’s police power to regulate biosolids by attempting to regulate the City of Los Angeles, another government entity.

Kern County appealed the injunction to the 9th Circuit Court of Appeals. The appeals court dismissed the first of Judge Feess’ statements. The City of Los Angeles then appealed to the Supreme Court on the Commerce Clause argument, leading to the court’s decision this June to not hear the case. While not a decision on the merits, the Supreme Court’s decision does limit the City of Los Angeles’ claims to overturn the Kern County ban to two issues: whether the ban contradicts California recycling law and whether Kern County is able to “police” the City of Los Angeles.

  The Water Environment Federation (WEF: Alexandria, Va.), along with the National Association of Clean Water Agencies (NACWA; Washington, D.C.), has supported the position of the City of Los Angeles. WEF filed an amicus brief in 2009 when the case came before the 9th Circuit Court of Appeals and joined NACWA on its amicus brief before the Supreme Court this year.   

In essence, the WEF position supports Judge Feess’ original rationale for issuing an injunction against the land application ban. In his district court opinion granting the injunction, Judge Feess states, “in short, while applying sewage sludge to agricultural land may provoke a visceral response in lay observers, the available evidence suggests that the practice has been undertaken safely throughout the United States without any indication of detrimental environmental or health impacts, and indeed is the most environmentally sound method of managing the material.”

As WEF consistently has held, recycling treated wastewater solids has been successfully practiced for more than 75 years, and every year thousands of farm acres benefit from use of biosolids as a fertilizer and soil amendment. Land application of biosolids to farmland is subject to strict state and federal regulatory oversight and, when carried out in compliance with these regulations, is a sound and efficient management practice. 

The decision to ban biosolids in Kern County was not science-based and, if allowed to stand, could encourage similar unfounded efforts and inhibit an environmentally beneficial practice. WEF will continue to work with government entities at all levels to develop laws and regulations based on sound science.

 

James K. Sullivan is general counsel at the Water Environment Federation (WEF; Alexandria, Va.).

 

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