City of L.A. v. Cnty. of Kern
| Decision Date | 26 June 2013 |
| Docket Number | F063381 |
| Citation | 154 Cal.Rptr.3d 122 |
| Court | California Court of Appeals Court of Appeals |
| Parties | CITY OF LOS ANGELES et al., Plaintiffs and Respondents, v. COUNTY OF KERN et al., Defendants and Appellants. |
OPINION TEXT STARTS HERE
See12 Witkin, Summary of Cal. Law (10th ed. 2005) Real Property, § 908.
APPEAL from a judgment of the Superior Court of Tulare County. Lloyd L. Hicks, Judge. (Super. Ct. No. VCU242057)
Arnold & Porter, Jerome B. Falk, Steven L. Mayer, Sara J. Eisenberg, San Francisco; Theresa A. Goldner, County Counsel, Mark L. Nations, Deputy County Counsel; Hogan Guiney Dick, Michael M. Hogan, San Diego; Hogan Law, Michael M. Hogan, for Defendants and Appellants.
Carmen A. Trutanich, City Attorney, Valerie Flores, Managing Assistant City Attorney, Edward M. Jordan, Assistant City Attorney; Beveridge & Diamond, Gary J. Smith, Zachary M. Norris, San Francisco, James B. Slaughter, for Plaintiffs and Respondents City of Los Angeles, Responsible Biosolids Management, Inc., R & G Fanucchi, Inc., and Sierra Transport, Inc.
Lewis Brisbois Bisgaard & Smith, Daniel V. Hyde and Paul J. Beck, Los Angeles, for Plaintiff and Respondent County Sanitation District No. 2 of Los Angeles County.
Woodruff Spradlin & Smart, Bradley R. Hogin, Costa Mesa, for Plaintiff and RespondentOrange County Sanitation District.
Law Offices of Michael J. Lampe, Michael J. Lampe, Visalia, for Plaintiffs and Respondents Shaen Magan, Honey Bucket Farms, Tule Ranch/Magan Farms, and Western Express, Inc.
Somach Simmons & Dunn, Roberta L. Larson, Sacramento, for Plaintiff and Respondent California Association of Sanitation Agencies.
Freeman Freeman Smiley, Christopher M. Westhoff, Los Angeles; National Association of Clean Water Agencies, Nathan Gardner–Andrews for National Association of Clean Water Agencies as Amicus Curiae on behalf of Plaintiffs and Respondents.
Barg Coffin Lewis & Trapp, San Francisco, Marc A. Zeppetello for Water Environment Federation as Amicus Curiae on behalf of Plaintiffs and Respondents.
Measure E is a Kern County ballot measure that was designed to ban in unincorporated areas of the county the use of agricultural fertilizer made from recycled municipal sewage sludge. The application of this fertilizer, known in the industry as “biosolids,” is a major, widespread, comprehensively regulated form of recycling upon which many municipalities' waste management systems depend. In fact, Kern cities, including Bakersfield, Taft, Wasco and Delano, continue to apply biosolids to farmland in incorporated areas, which are unaffected by Measure E.
If enforced, Measure E would have the effect of preventing plaintiff City of Los Angeles and others (including Kern County itself) from continuing to apply biosolids in unincorporated areas as a means of disposing of sewage sludge on farms they either own or contract with in Kern County. The litigation has been proceeding through federal and state courts for more than six years. Most recently, the complaint was refiled in the superior court after a federal district court's judgment invalidating the measure was vacated for reasons having nothing to do with the merits. Just as the district court had done earlier, the superior court issued a preliminary injunction to prevent the measure from taking effect, and defendant Kern County appeals.
Just like the district court and the superior court, we conclude that a preliminary injunction was appropriate. We agree with both courts that plaintiffs were reasonably likely to succeed on two of their contentions: (1) that Measure E is preempted by the California Integrated Waste Management Act (Pub. Resources Code, § 40000 et seq.) (CIWMA), and (2) that Measure E conflicted with a state constitutional principle known as the regional welfare doctrine and therefore exceeded Kern County's authority.
We are confident the superior court did not abuse its discretion in granting a preliminary injunction in this case. First and foremost, the superior court, in a determination not challenged by any party in this appeal, concluded there was no evidence at all of hardship to Kern County if the injunction were granted. The proponents of Measure E insisted that land application of biosolids is dangerous, but the record in this case so far does not support their view. At the same time, there is a substantial likelihood of harm, including irreparable harm, to plaintiffs if the preliminary injunction is not granted.
A preliminary injunction should be granted when the moving party shows that it is likely to succeed on the merits of a cause of action and the balance of hardships resulting from granting or not grantingthe injunction tips in the moving party's favor. The more likely it is that the moving party will prevail on the merits, the less strongly the balance of hardships needs to tip in its favor. In light of the undisputed lack of a showing of hardship to Kern County, we conclude plaintiffs' showing of a likelihood of success on the merits was more than sufficient.
Local governments in California and elsewhere are continuously obliged to collect and treat municipal sewage and to dispose of the byproducts of sewage treatment. (City of Los Angeles v. County of Kern (C.D.Cal.2007) 509 F.Supp.2d 865, 871 ( Los Angeles v. Kern II ).) These byproducts, known as sewage sludge or biosolids 1 ( City of Los Angeles v. County of Kern (C.D.Cal.2006) 462 F.Supp.2d 1105, 1109 ( Los Angeles v. Kern I ); 40 C.F.R. § 503.9(w)), have often been disposed of by placing them in landfills or incinerating them. In California, however, local governments are mandated by the CIWMA to reduce their streams of solid waste going to landfills and incinerators. ( Pub. Resources Code, § 40051.) 2 One way in which they do this is to make their biosolids available for use as an agricultural fertilizer. This use is known as “land application” of biosolids. ( Los Angeles v. Kern I, supra, 462 F.Supp.2d at p. 1109.) As of 2009, 61 percent of biosolids generated by sewage treatment plants in California were disposed of via land application.
Land application of biosolids is subject to federal, state, and local regulations. In 1993, the United States Environmental Protection Agency (EPA) issued Part 503 of title 40 of the Code of Federal Regulations (Part 503), which divides biosolids into a Class A and a Class B according to the quantity of pathogenic microorganisms remaining after treatment. (40 C.F.R. § 503.32.) Class B biosolids are treated to eliminate 99 percent of these microorganisms. The federal regulations allow land application of them with site controls, such as restrictions on human access to the farm fields and setbacks from property lines.
Class A biosolids are treated to eliminate virtually all pathenogenic microorganisms. The federal regulations allow them to be applied to land with few restrictions and also allow them to be bagged and sold for home gardening use. A yet higher-quality grade is Class A Exceptional Quality (EQ) biosolids. In these, eight trace metals may be present in concentrations no greater than a specified level. EQ biosolids are not subject to Part 503's general requirements and management practices for land application. (U.S. Environmental Protection Agency, Environmental Regulations and Technology, Control of Pathogens and Vector Attraction in Sewage Sludge (July 2003) 5; 3[154 Cal.Rptr.3d 127]40 C.F.R. § 503.13(b)(3), Table 3.) The State Water Resources Control Board (SWRCB) has imposed additional regulations in the form of a general order issued in 2004, Water Quality Order No. 2004–0012–DWQ.4 This general order requires each land application site to be approved before any biosolids are applied. Before Measure E, Kern County also regulated land application of biosolids. These regulations included a prohibition on land application of all biosolids except Class A EQ biosolids. For purposes of this appeal, it is undisputed that plaintiffs complied with all the regulations in place before Measure E.
Government regulators have generally maintained that land application of biosolids is safe and have promoted land application as a beneficial use of biosolids, as well as an effective means of disposing of the byproducts of sewage treatment without landfilling or incineration. (Los Angeles v. Kern II, supra, 509 F.Supp.2d at p. 871.) In 2002, at the request of the EPA, the National Research Council (NRC) evaluated the effectiveness of Part 503 in protecting human health. ( Los Angeles v. Kern II, supra, at p. 872.) The NRC found “ ‘no documented scientific evidence that the Part 503 rule has failed to protect public health.’ ” ( Ibid.) It called for “ ‘additional scientific work is needed to reduce persistent uncertainty’ ” arising from anecdotal allegations of disease, as well as to ensure that the regulation's standards were supported by current data and methods, that the management practices called for by the regulations were effective, and that the regulations were being enforced. ( Ibid.) Additional research followed but found nothing to undermine the conclusion that land application of biosolids in compliance with the Part 503 regulations presents minimal risk to human health. ( Ibid.)
When the SWRCB issued its regulations, it relied on a statewide program environmental impact report (EIR) it had commissioned. (California SWRCB Statewide Program Environmental Impact Report Covering General Waste Discharge Requirements for Biosolids Land Application.5) The EIR concluded that the environmental impacts of land application of biosolids in compliance with the regulations would be less than significant. (California SWRCB, General Waste Discharge Requirements of Biosolids Land Application Draft Statewide Program EIR (Feb. 2004) at p. ES–14 & table ES–1.6) Kern County, in its pre-Measure E regulations restricting land application to Class A EQ biosolids, stated that it “recognize[d] that...
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