High court declines LA's appeal on sludge

WASHINGTON — The Supreme Court on Tuesday made it easier for San Joaquin Valley residents to reject Southern California sludge.

In a quiet but closely watched decision, the court declined to review a constitutional challenge to Kern County's ban on the land application of treated waste. The decision undermines Los Angeles' ability to challenge similar bans in the future.

Steven L. Mayer, a San Francisco-based attorney representing Kern County, said Tuesday that the decision will effectively restrict challenges to other anti-sludge policies that contain "similar circumstances" to Kern County's.

"It will be very fact-specific," Mayer noted.

As is customary, the court did not explain its decision not to hear the challenge to the Kern County ban. The federal court's decision does not affect remaining challenges being heard in state court.

Behind the scenes, cities and counties from across the country had stressed the significance of the sludge case. Chicago, Denver and Milwaukee officials, among others, had warned the Supreme Court against proliferating local anti-sludge ordinances.

"They serve only a parochial goal to keep bulk biosolids intended for farm use from coming into the jurisdiction," an amicus brief filed by the cities stated.

Several San Joaquin Valley counties have in recent years debated or enacted ordinances governing sludge disposal.

In 2006, Kern County voters by an overwhelming margin adopted Measure E. The strict ordinance made it unlawful to apply biosolids, meaning treated human and industrial waste, to unincorporated land in the county.

Although the ban applied to "any person," its practical effect targeted Southern California. The city of Los Angeles, as well as several Southern California sanitation districts, ship large amounts of waste to be spread on three Kern County farms.

Together, Honey Bucket Ranch, Tule Ranch and Green Acre Farms span more than 8,000 acres. The farmers use sludge as fertilizer, boosting crops such as barley and wheat.

"Stop L.A. from dumping on Kern," one Measure E campaign brochure stated.

Los Angeles challenged the ban on several grounds. In part, city officials said Kern County was violating the so-called "dormant Commerce Clause" of the Constitution. The clause essentially prohibits states from discriminating against one another in interstate commerce.

Los Angeles officials also said Kern County's sludge ban would force the Southern California city to find other, more expensive places to ship its sludge.

A trial judge agreed with Los Angeles, and Measure E never has taken effect.

But in September, the 9th U.S. Circuit Court of Appeals ruled that Los Angeles couldn't rely on the dormant Commerce Clause because the constitutional provision dealt with commerce between states rather than commerce within a single state.

"The interest the recyclers wish to ensure is their ability to exploit a portion of the intrastate waste market," the appellate court noted. "They want to be able to ship their waste from one part of California to another."

Mayer said he wasn't surprised the Supreme Court declined to hear the challenge, noting that the court "turns down the overwhelming majority of claims" that are submitted. Last year, the court considered 8,966 petitions and agreed to hear fewer than 90.

Bee Washington Bureau reporter Michael Doyle can be reached at or 202-383-0006.