Petition for Writ of Certiorari — City of Los Angeles v. Kern County

; ey

091111 MAR 15 2010

— OFFICE OF THE CLERK

No.

an The

Supreme Court of the Anited States

¢

CITY OF LOS ANGELES, et al.,

Petitioners,

v.

COUNTY OF KERN, et al.,

Respondents.

. —

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

°

PETITION FORA WRIT OF CERTIORARI

—

CARMEN A. TRUTANICH DAVID SALMONS

EDWARD JORDAN Counsel of Record

KEITH W. PRITSKER TIIOMAS S. HIXSON

CITY OF LOS ANGELES MARC R. BRUNER

1800 City Hall BINGHAM MCCUTCHEN LLP

200 North Main Street 2020 K Street, NW

Los Angeles, CA Washington, D.C. 20006-1806

90012-4110 (202) 373-6000

(213) 978-8100 david.salmons@bingham.com

ted jordan@lacity.org Counsel for Petitioners

Counsel for Petitioner City of Los Angeles, et al.

City of Los Angeles

(Additional Counsel Listed On Inside Cover)

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

JAMES B. SLAUGHTER

GARY J. SMITH

BEVERIDGE & DIAMOND P.C

1350 I Street, N.W., Suite 700

Washington, D.C.

20005-3311

(202) 789-6000

jslaughter@bdlaw.com

Counsel for Petitioners

City of Los Angeles,

Responsible Biosolids

Management, Inc., R&G

Fanucchi Farms, Inc.,

and Sierra Transport, Inc.

MICHAEL J. LAMPE

LAW OFFICES OF

MICHAEL J. LAMPE

108 W. Center Avenue

Visalia, CA 93291

(559) 738-5975

mjl@lampe-law.com

Counsel for Petitioner

Shaen Magan,

individually and d/b/a

Honey Bucket Farms and

Tule Ranch/Magan Farms

DANIEL V. HYDE

PAUL J. BECK

LEWIS BRISBOIS BISGAARD

& SMITH LLP

221 N. Figueroa Street,

Suite 1200

Los Angeles, CA 90012-2601

(213) 250-1800

hyde@lbbslaw.com

Counsel for Petitioner

County Sanitation District

No. 2 of Los Angeles County

ROBERTA L. LARSON

SOMACH SIMMONS &

DUNN, PC.

500 Capitol Mall, Suite 1000

Sacramento, CA 95814

(916) 446-7979

blarson@somachlaw.com

Counsel for Petitioner

California Association

of Sanitation Agencies

BRADLEY R. HOGIN

RICIA HAGER

WOODRUFF, SPRADLIN

& SMART

555 Anton Boulevard,

Suite 1200

Costa Mesa, CA 92626

(714) 558-7000

bhogin@wss-law.com

Counsel for Petitioner

Orange County Sanitation

District

QUESTION PRESENTED

Whether the Ninth Circuit erred in holding that

an in-state plaintiff lacks prudential standing under

the “zone of interest” test to assert a dormant

Commerce Clause challenge to a local ordinance

that impedes the flow of commerce, contrary to the

holdings of the First and Eighth Circuits.

8

PARTIES

Petitioners (Plaintiffs-Appellees before the

Ninth Circuit):

City of Los Angeles

Orange County Sanitation District

County Sanitation District No. 2 of Los Angeles

County

Responsible Biosolids Management, Inc.

R&‘ Fanucchi Farms, Inc.

Shaen Magan, individually and d/b/a Honey Bucket

Farms and Tule Ranch/Magan Farms

Western Express, Inc.

Sierra Transport, Inc.

California Association of Sanitation Agencies

Respondents (Defendants-Appellants before

the Ninth Circuit):

County of Kern

Kern County Board of Supervisors

Intervenors before the District Court:

Arvin-Edison Water Storage District

Association of Irritated Residents

Kern County Water Agency

Kern Water Bank Authority

ill

RULE 29.6 CORPORATE

DISCLOSURE STATEMENT

Petitioners Responsible Biosolids Management,

Inc., R&G Fanucchi, Inc., Western Express, Inc.,

Sierra Transport, Inc., and California Association of

Sanitation Agencies state that each has no parent

corporation and that no publicly-held company owns

10% or more of any of their respective stock. The

remaining Petitioners are either governmental or

non-corporate parties.

lV

TABLE OF CONTENTS

Page

ETE bint ccssnnseversecivissncecenseieevseataneans 1

PINE wicker ca ncunserteienianemencassecteaswereeemetes 1

CONSTITUTIONAL PROVISIONS, STATUTES,

AND REGULATIONS INVOLVED .................. 1

STATEMENT OF THE CAGSE...........................04: 2

I. Facts of the Underlying Litigation............ 2

II. The District Court Litigation.................... 7

III. Disposition in the District Court............... 8

IV. Opinion of the Ninth Circuit ..................... 9

V. What Is at Stake in This Case .................. 10

REASONS FOR GRANTING THE WRIT ........... 11

I. The Ninth Circuit’s Decision Directly

Conflicts with Decisions of the First and

BGR MNINEDD S40 oc rscccercssnccsevcamninuntonvieiores 14

Il. The Ninth Circuit’s Decision Conflicts

with This Court’s Precedent...................... 18

III. The Standing Question Presented in This

Case Is Important and Recurring ............. 26

CAINE roeinres ccvecvercere Manuiamnereettn anes 31

TABLE OF CONTENTS -— Continued

Page

APPENDIX

Opinion of the Ninth Circuit, No. 07-56564 (9th

Sh 1, nT csmsceuseteccorssersstenceretectovesesrotts App. l

Order re: Cross-Motions for Summary Judgment,

No. 06-5094 (C.D. Cal. Aug. 10, 2007)............. App. 18

Final Judgment Pursuant to Fed. R. Civ. P. 54(B),

No. 06-5094 (C.D. Cal. Sept. 5, 2007).......... App. 102

Order [staying issuance of mandate], No. 07-

56564 (9th Cir. Jan. 8, 2010)....................... App. 105

Order [denying rehearing], No. 07-56564 (9th

CTE TT enevenvenaeeiuenees App. 107

OO. GE, OD oo. ccneswenvcweceosuenveveuseve App. 109

a cacaeehibewinensoeis App. 109

Neen cn. Ls occecnauuescwenaseeciees App. 109

ee co vccevenvenseacareenddoeccnvoes ‘App. 110

Neen cas caedeeecuonnnieschucehos App. 111

a sic a sukgnideenstoeueabenneoeuesees App. 112

os spenaemeuntinasenne App. 120

“Measure E” Ballot Initiative.......................... App. 122

Declaration of Larry Bahr in Support of Plain-

tiffs’ Motion for a Preliminary Injunction ....App. 130

Appellees’ Supplemental Brief on Prudential

Standing to the Ninth Circuit ..................... App. 148

TABLE OF AUTHORITIES

Page

CASES

Associated Indus. of Mo. v. Lohman, 511 U.S.

Be TE ahcsinicnadnordecenssiiindsncstenannmbdeinsmcenthadinabebenns 24

Ass’n of Data Processing Serv. Orgs. v. Camp,

Pe ay Se EN cai ncdiniindcvnncosuieennbabennsmumecnes 15, 26

Ben Oehrleins & Sons & Daughter, Inc. v.

Hennepin County, 115 F.3d 1372 (8th Cir.

TET Tea cidsdinscunisiidsautiasdacaiaedelenusse ke dbuveaisbaeknamennemmad passim

Boston Stock Exch. v. State Tax Comm’n, 429

RR sg | Xe er cen LANE RRA ROSE 26

Brimmer v. Rebman, 138 U.S. 78 (1891) ............. 19, 23

C & A Carbone, Inc. v. Town of Clarkstown, 511

FE EE Eiiiicisacapenbidndiiuaiisplssinmitadinkliaassiel passim

Camps Newfound/Owatonna, Inc. v. Town of

Harrison, 520 U.S. 564 (1997)..............000008 12, 21, 23

City of L.A. v. County of Kern, No. CV 06 5094,

2006 WL 3073172 (C.D. Cal. Oct. 24, 2006)............. 7

City of L.A. v. County of Kern, 462 F. Supp. 2d

A ee

City of L.A. v. County of Kern, 509 F. Supp. 2d

EY Man I ial ce isc cimneiliniadlaeetua deli passim

City of L.A. v. County of Kern, 581 F.3d 841

Se Wat IIIT ninco aciesdunssasnercdusideciebais dasicassunibaeenducimlees passim

Clarke v. Sec. Indus. Ass’n, 479 U.S. 388 (1987)....... 25

Vil

TABLE OF AUTHORITIES —- Continued

Page

Dean Milk Co. v. City of Madison, 340 U.S. 349

SRST EES ean oeeraat Se IRE eo ee 18, 23

Fort Gratiot Sanitary Landfill, Inc. v. Mich.

Dep't of Natural Res., 504 U.S. 353 (1992)....... 12, 24

Gonzalez v. Raich, 545 U.S. 1 (2005) ...........000... passim

Heart of Atlanta Motel, Inc. v. United States,

a Ls atemeuatioweneiaoweved 21

Houlton Citizens’ Coal. v. Town of Houlton, 175

-f Be, gt Le Raepueeneemnone 11, 14, 16, 17

Hughes v. Oklahoma, 441 U.S. 322 (1979)...... a3. 31, 3S

Solid Waste Agency of N. Cook County v. U.S.

Army Corps of Eng’rs, 531 U.S. 159 (2001)............ 25

United Haulers Ass’n, Inc. v. Oneida-Herkimer

Solid Waste Mgmt. Auth., 550 U.S. 330

gg REESE ES ARTE ANOINTED RUDRA EET 10

Wickard v. Filburn, 317 U.S. 111 (1942) ........0........ 20, 23

CONSTITUTIONAL PROVISIONS

ee od vel udwadwaneenis 1.2

STATUTES

a ciwnnmneaeriovenns ui

BE EER Ee AO eS i

AES SSRN RE Gn OR ONO te PAE APO EON 2,74

EE I lad rteudin is weal eebacnntihielaiensandlbineitonetons 2,7

TABLE OF AUTHORITIES ~— Continued

Page

Oe BF TAS, © BRDe ceitccccevirersersessnstetetntrrammenee he

BS OE Is, OF SEE eecusssesiwretesievescorvenstencsamneeee Re

BE UTC. © BGS cvccesciccersievssernnnnncaneeneee 1, 25

REGULATIONS

Lop fF ey :. i npemrmnnnmenmen nn 1, 25

RULES

Federal Rule of Civil Procedure 54(b).....................2.--. 8

1

OPINIONS BELOW

The opinion of the court of appeals (App., infra,

1-17) is reported at 581 F.3d 841.

The decision of the district court granting Peti-

tioners’ motion for summary judgment (App., infra, 18-

101) is reported at 509 F. Supp. 2d 865. The order of the

district court granting a permanent injunction against

Respondents (App., infra, 102-04) is not reported.

¢

JURISDICTION

The judgment of the court of appeals was filed on

September 9, 2009. A petition for rehearing was

denied on December 15, 2009. (App., infra, 107-08.)

The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS,

STATUTES, AND REGULATIONS INVOLVED

The Commerce Clause of the United States Con-

stitution, U.S. Const. art. I, § 8, cl. 3, the relevant

provisions of the Federal Clean Water Act governing

the use or disposal of sewage sludge, 33 U.S.C.

§ 1345, and the introduction to the Environmental

Protection Agency regulations applicable to the final

use or disposal of sewage sludge, 40 C.F_.R. § 503.1,

are sect forth in the Appendix. (App., infra, 109, 112-

21.)

2

The district court had jurisdiction over Appellees’

federal claims under 28 U.S.C. §§ 1331, 1337, 1343

and 2201, and over their state-law claims under 28

U.S.C. § 1367. (App., infra, 109-12.)

¢

STATEMENT OF THE CASE

I. Facts of the Underlying Litigation

Petitioners are public and private entities and in-

dividuals from throughout California — including the

largest city in the state, private contractors, and far-

mers — that run some of the most successful recycling

programs in the United States today. Petitioners City

of Los Angeles, Orange County Sanitation District,

and County Sanitation District No. 2 of Los Angeles

County collect and treat wastewater from more than

10 million residents of Southern California, process

the sewage to generate a product — “biosolids” — and

then recycle the biosolids to farmland. The biosolids

are used as fertilizer to grow crops for animal feed at

three farming sites in Kern County, California, and at

sites in Arizona. Biosolids replace chemical fertilizers

and improve soil quality.

Biosolids are the product of sewage sludge after

it has been treated pursuant to Environmental Pro-

tection Agency (“EPA”) regulations. 509 F. Supp. 2d

at 870-71 (App., infra, 23-24) (district court findings

of undisputed fact). They are nutrient-rich organic

3

matter and make excellent fertilizer and soi] condi-

tioner. (Bahr Decl.’ | 10, App., infra, 136-37.) “Land

application,” that is, recycling biosolids as agricultur-

al fertilizer, is one of the principal ways of managing

sewage sludge in the United States. See 509 F. Supp.

2d at 870-71 (App., infra, 23) (district court findings

of undisputed fact). In 2003, EPA estimated that

approximately 60% of sewage sludge nationwide was

recycled and applied to farmland. Jd. at 871 (App.,

infra, 23). EPA promotes land application of biosolids

as a safe and beneficial way of recycling sewage

wastewater. /d. at 871-72 (App., infra, 25). Decades of

experience with land application and research by EPA

and the scientific community, including two reviews

by committees of the National Academy of Sciences,

have uncovered no evidence that land application of

biosolids is unsafe. Id. (App., infra, 25-28).”

California produces approximately 750,000 dry

tons of biosolids per year, and disposes of 69% of

it through options involving land application. (Bahr

' ‘The declaration of Larry Bahr (App., infra, 131-47 (exhibit

omitted)), an expert on regional biosolids management in Cali-

fornia, was submitted by Petitioners in support of their Motion

for a Preliminary Injunction, which the district court granted,

City of L.A. v. County of Kern, 462 F. Supp. 2d 1105 (C.D. Cal.

2006).

* Indeed, the National Association of Clean Water Agencies

and the Water Environment Federation submitted amicus briefs

to the Ninth Circuit in support of Petitioners, explaining that

the land application of biosolids is stringently regulated, scien-

tifically sound, and poses negligible health risks to surrounding

communities.

4

Decl. 9{ 18-19, App., infra, 141-42.) As the district

court found, biosolids management is a “constant, non-

discretionary governmental function.” 509 F. Supp. 2d

at 871 (App., infra, 25). Landfill sites in California

are scarce, and more than 20% of California’s

biosolids are currently managed out-of-state. (Bahr

Decl. { 25, App., infra, 144.) Petitioner Orange Coun-

ty Sanitation District already ships some of its

biosolids to Arizona. (Ghirelli Decl.’ 4 6, ER 177.)

Since 1994, Petitioners have successfully land

applied biosolids at Green Acres Farm, Honey Bucket

Farms, and Tule Ranch, encompassing over 8,000

acres of farmland in the unincorporated area of Kern

County.* 509 F. Supp. 2d at 873-75 (App., infra, 28-34)

(district court findings of undisputed fact); (Bahr

Decl. 9 24, App., infra, 143-44). The County acreage

provides biosolids management for approximately one-

third of California’s biosolids. (Bahr Decl. 9 24, App.,

infra, 143-44.) Petitioner City of Los Angeles invested

approximately $28 million to buy and improve the

Green Acres site, and currently employs a full-time

staff of farmers, contractors, employees, and engi-

neers who oversee and implement the transportation,

* The declaration of Robert P. Ghirelli (ER 175-179), a

manager of Petitioner Orange County Sanitation District, was

submitted by Petitioners in support of their Motion for a

Preliminary Injunction.

* For ease of reference, the political entity (including its

Board of Supervisors) will henceforth be referred to as “Kern,”

and the geographical area as “the County.”

5

land application, and farming operations. (Minamide

Decl. 79 7, 23, ER 122, 128.)° The City has committed

to beneficially reuse 100% of its biosolids through

land application, and has ceased to dispose of bio-

solids in landfills, which is not a beneficial use. (/d.

q 19, ER 126.)

Kern itself ships its biosolids to a local compost-

ing company, for sale to private firms outside the

County. 509 F. Supp. 2d at 875 (App., infra, 35) (dis-

trict court findings of undisputed fact). Moreover,

local cities within the County — including the City of

Bakersfield, with a population of over 300,000 — apply

biosolids on land in their incorporated areas. Jd. at

876 (App., infra, 36).

In 2006, a state senator sponsored the “Keep

Kern Clean Ordinance” (“Measure E”), which bans

the land application of biosolids in the unincorporated

areas of the County. See id. at 876-77 (App., infra, 37-

39). The initiative campaign made clear that Measure

E targeted out-of-county biosolids producers. Id. Ex-

horted by anti-Los Angeles slogans such as “Measure

E will stop L.A. from dumping on Kern,” and “we’ve

got a bully next door, flinging garbage over his fence

into our yard,” County voters passed Measure E. ld.

Violation of Measure E is a misdemeanor punishable

The declaration of Traci J. Minamide, P.E., assistant

director of the Los Angeles Bureau of Sanitation, was submitted

by Petitioners in support of their Motion for a Preliminary

Injunction. It can be found in Appellants’ Excerpts of Record

submitted to the Ninth Circuit (“ER”) at ER 120-137.

6

by a fine of not more than $500 or imprisonment for

not more than six months. /d. (See Measure E, App.,

infra, 122-29.)

Petitioners are the only entities affected by

Measure E. On its face, Measure E applies to both

in-county and out-of-county waste generators (see

Measure E, App., infra, 122-29), but in practice, in-

county biosolids generators such as Bakersfield, the

largest city in the County, are located in the incorpo-

rated areas of the county and therefore may continue

to apply biosolids on their land. 509 F. Supp. 2d at

885-86 (App., infra, 60-62). Kern itself may also

continue to ship its biosolids outside the county to a

composting company. Id. (App., infra, 60). Thus, as

the district court found, Measure E affects only, and

discriminates against, out-of-county interests.

Measure E’s enforcement would compel Peti-

tioners to divert thousands of tons of biosolids weekly

from their long-operating recycling operations in

California to Arizeia and elsewhere, significantly

increasing costs to them (and therefore to ratepayers)

and pollution from long-distance transportation. (Bahr

Decl. 7 24-25, 27-28, App., infra, 143-46; Minamide

Decl. (33-37, 41-42, ER 131-32, 134-35.) If Measure

E is enforced, annual costs to Petitioners will likely

increase by two-thirds, if not more. (Minamide Decl.

47 33, ER 131.) Air emissions caused by Petitioners’

shipping of biosolids will more than double. Ud. { 46,

ER 136.)

7

Il. The District Court Litigation

Facing the imminent shutdown of their biosolids

programs, Petitioners sued Kern in the Central Dis-

trict of California, alleging that Measure E vio-

lates the dormant Commerce Clause and the Equal

Protection Clause, is preempted by federal and state

laws, and constitutes an invalid exercise of Kern’s

police power. The district court had jurisdiction over

Appellees’ federal claims under 28 U.S.C. §§ 1331,

1337, 13843 and 2201, and their state-law claims

under 28 U.S.C. § 1367. (See App., infra, 109-12.)

The district court dismissed Petitioners’ preemp-

tion claims under the Clean Water Act and the

California Water Code, City of L.A. v. County of Kern,

No. CV 06 5094, 2006 WL 3073172 (C.D. Cal. Oct. 24,

2006), but granted Petitioners’ request for a prelimi-

nary injunction halting enforcement of Measure E,

City of L.A. v. County of Kern, 462 F. Supp. 2d 1105

(C.D. Cal. 2006).

Kern then moved for summary judgment on all

claims; Petitioners filed a cross-motion for summary

judgment on their state law preemption claim and, in

their opposition to Kern’s summary judgment motion,

asked the district court to enter summary judgment

in their favor on the Commerce Clause and police

power claims.

8

II. Disposition in the District Court

The district court concluded that Measure E

discriminated against interstate commerce in effect.

City of Los Angeles v. County of Kern, 509 F. Supp. 2d

865, 881-88 (C.D. Cal. 2007) (App., infra, 50-65). The

court found that “the campaign attacks on ‘Los

Angeles sludge’ ... graphically expose Measure E’s

objective of removing Plaintiffs’ operations from the

County. ... But at the same time that Measure E is

forcing [Petitioners] out of Kern County, it allows in-

county sludge producers to continue disposing of their

biosolids locally.” Id. at 870 (App., infra, 21).

The court therefore applied strict scrutiny and,

finding that Kern had non-discriminatory alterna-

tives to regulate land application, granted summary

judgment in favor of Petitioners. Jd. at 887-88 (App.,

infra, 64-65). The court noted that “the record reflects

that nearly 61% of Kern County’s registered voters

live in incorporated areas of the County. This means

that over three-fifths of the decision-makers tolerate

local disposition of locally generated biosolids, but

have prevented out-of-county recyclers from engaging

in precisely the same activity....” Jd. at 886 (App.,

infra, 61).

The court also separately held that Measure E

was preempted by the California Integrated Waste

Management Act. /d. at 890-98 (App., infra, 65-89).

The court entered judgment pursuant to Federal Rule

of Civil Procedure 54(b) and issued a permanent

9

injunction restraining the enforcement of Measure FE

on September 5, 2007. (App., infra, 102-04.)

IV. Opinion of the Ninth Circuit

On appeal, the Ninth Circuit panel held that the

district court should not have reached the merits of

Petitioners’ dormant Commerce Clause claim because

Petitioners lacked prudential standing to sue under

the dormant Commerce Clause. City of Los Angeles v.

County of Kern, 581 F.3d 841 (9th Cir. 2009) (App.,

infra, 1-17). In the district court, Kern did not chal-

lenge the Petitioners’ standing and in the court of

appeals Kern initially took the position that it had

waived the issue. The panel decided to reach pruden-

tial standing sua sponte. Id. at 845-46 (App., infra,

8-11).

In the Ninth Circuit’s view, “[t]he interest the

recyclers seek to secure is their ability to exploit a

portion of the intrastate waste market — they want to

be able to ship their waste from one portion of

California to another.” Id. at 847 (App., infra, 14).

The Ninth Circuit held that transporting biosolids

from one part of California to another “in no way bur-

dens the recyclers’ protected interest in the interstate

waste market,” and thus Petitioners fel] outside the

“zone of interests protected by the [dormant Com-

merce] clause.” Jd. at 848 (App., infra, 14). The court

“decline|d| to expand the zone of interest protected by

the [dormant Commerce] Clause to purely intrastate

disputes.” Jd.

10

V. What Is at Stake in This Case

This case concerns the biosolids generated by

over 10 million people and whether those biosolids

will continue to be recycled on farms in Southern

California, or whether a discriminatory local voter

initiative may upend this long-standing practice,

immune from Constitutional review. Petitioners have

spent tens of millions of dollars of public moneys to

purchase, develop, and upgrade the farmland,

wastewater facilities, and trucking infrastructure

necessary for their biosolids recycling programs. (See,

e.g., Minamide Decl. 931, ER 130.) This public

investment is at risk, as well as the millions of dollars

of future costs entailed by forced closing of the farms.

Kern’s ban, if upheld, likely will encourage other

rural counties to enact similar bans or onerous

restrictions. Such bans will likely in turn lead to

retaliatory measures from out-of-county interests. See

C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S.

383, 390 (1994) (“The central rationale for the rule

against discrimination is to prohibit state or munici-

pal laws whose object is local economic protectionism,

laws that would excite those jealousies and retalia-

tory measures the Constitution was designed to pre-

vent.”) Measure E’s discriminatory “Not In My Back

Yard” intent is precisely the type of protectionist

behavior that this Court’s dormant Commerce Clause

jurisprudence seeks to prevent. See United Haulers

Ass'n, Inc. v. Oneida-Herkimer Solid Waste Mgmt.

Auth., 550 U.S. 330, 345 (2007) (dormant Commerce

Clause protects against local efforts to “shift[] the

1]

costs of regulation” to outside interests with no say in

the local political process and to sidestep “those

political restraints normally exerted when interests

within the state are affected”).

—_ .

REASONS FOR GRANTING THE WRIT

The Ninth Circuit’s decision in this case directly

conflicts with decisions of the First and Eighth

Circuits, and with this Court’s precedents defining

the scope of the Commerce Clause. Moreover, the

question presented is both important and recurring.

Accordingly, the Court should grant this petition.

First, review is warranted because the Ninth

Circuit’s decision directly conflicts with the decisions

of the First and Eighth Circuits. See Houlton Citizens’

Coal. v. Town of Houlton, 175 F.3d 178, 183 (1st Cir.

1999); Ben Oehrleins & Sons & Daughter, Inc. v.

Hennepin County, 115 F.3d 1372, 1379 (8th Cir. 1997).

Both Houlton Citizens’ Coalition and Ben Oehrleins

expressly hold that an in-state plaintiff conducting

only in-state economic activity has prudential stand-

ing to assert a dormant Commerce Clause challenge

to a local ordinance. That is, both of those Circuits

have adopted an understanding of the zone of interest

protected by the dormant Commerce Clause that is

directly at odds with the holding of the Ninth Circuit

below. Indeed, the Ninth Circuit panel expressly

acknowledged the split with the Eighth Circuit. 581

12

F.3d at 849 n.8 (App., infra, 16) (“we decline to follow”

Ben Oehrleins).

Second, the decision below conflicts with this

Court’s decisions defining the scope of the Commerce

Clause and the interests it was designed to protect.

This Court’s cases make clear that the transport of

biosolids from one part of California to another and

their recycling pursuant to EPA regulations substan-

tially affects interstate commerce and therefore falls

within the purview of the dormant Commerce Clause.

The decision below conflicts with this Court’s holding

that “a State (or one of its political subdivisions) may

not avoid the strictures of the Commerce Clause by

curtailing the movement of articles of commerce

through subdivisions of the State, rather than through

the State itself.” Fort Gratiot Sanitary Landfill, Inc.

v. Mich. Dep't of Natural Res., 504 U.S. 353, 361

(1992) (emphasis added).

This Court’s case law “firmly establishes Con-

gress’ power to regulate purely local activities that are

part of an economic ‘class of activities’ that have a

substantial effect on interstate commerce.” Gonzalez

v. Raich, 545 U.S. 1, 17 (2005) (emphasis added). The

dormant Commerce Clause reaches just as far, for

“(t]he definition of ‘commerce’ is the same when relied

on to strike down or restrict state legislation as when

relied on to support some exertion of federal control

or regulation.” Hughes v. Oklahoma, 441 U.S. 322,

326 n.2 (1979); see also Camps Newfound/Owatonna,

Inc. v. Town of Harrison, 520 U.S. £64, 572-74 (1997)

(quoting and applying Hughes).

13

Under modern Commerce Clause jurisprudence,

Congress may regulate the transport and use of prod-

ucts such as biosolids within a state. Indeed, Con-

gress routinely regulates in-state economic activity —

such as by banning race and gender discrimination,

regulating employee welfare benefit plans, and

prescribing minimum wages and environmental

protections — for businesses that operate solely in-

state, on the theory that this economic activity

substantially affects interstate commerce. The Ninth

Circuit’s holding that the large-scale shipment and

recycling of biosolids within California — and the

economic consequences on interstate markets and

pricing from relocating that shipment and farming

activity to Arizona — do not even implicate the zone of

interests protected by the dormant Commerce Clause

is flatly contrary to this Court’s precedent.

Third, the standing question presented in this

case is important and recurring, and the Ninth Cir-

cuit’s decision will have significant deleterious effects.

The decision below effectively shields from any

judicial review state and local laws that violate the

dormant Commerce Clause whenever the effects of

those protectionist laws fall principally on in-state

actors, and even where, as here, the law interferes

with important federal economic and environmental

policies and overturns long-standing expectations and

tens of millions of dollars in long-term investments by

public and private entities.

Review by this Court is needed to resolve the ir-

reconcilable conflict among the courts of appeals over

14

who has prudential standing to enforce the require-

ments of the Commerce Clause and to ensure that the

Clause is not violated at will by localities seeking to

advance parochial interests that impede the flow of

commerce.

For these reasons, the Court should grant this

petition for certiorari.

I. The Ninth Circuit’s Decision Directly

Conflicts with Decisions of the First and

Eighth Circuits

The Ninth Circuit below adopted an interpre-

tation of the dormant Commerce Clause that directly

conflicts with the holdings of two other federal

Circuits. Both the First Circuit in Houlton Citizens’

Coalition v. Town of Houlton, 175 F.3d 178 (1st Cir.

1999), and the Eighth Circuit in Ben Oehrleins &

Sons & Daughter, Inc. v. Hennepin County, 115 F.3d

1372 (8th Cir. 1997), have held that an in-state plain-

tiff conducting only in-state economic activity has

prudential standing to assert a dormant Commerce

Clause challenge to a local ordinance. The Ninth Cir-

cuit in this case acknowledged that its decision

conflicted with Ben Oehrleins, see 581 F.3d at 849 n.8

(App., infra, 16) (“we decline to follow” Ben Oehr-

leins), but did not acknowledge the split with Houlton

Citizens’ Coalition.”

* Plaintiffs cited Houlton Citizens’ Coalition to the Ninth

Circuit in their supplemental brief on prudential standing. See

(Continued on following page)

15

In Ben Oehrleins, in-state haulers and processors

challenged a local ordinance that required waste

designated for in-state disposal to pass through

designated facilities. The Eighth Circuit analyzed

whether the plaintiffs had Article III standing and

prudential standing. The court explained that “[e]ven

if a plaintiff meets the minimum constitutional re-

quirements for standing, there are prudential limits

on a court’s exercise of jurisdiction.” 115 F.3d at 1378.

One such prudential limit is that “plaintiffs alleging a

violation of a constitutional or statutory right must

demonstrate that they are within the zone of inter

ests of the particular provision invoked,” id. at 1379

(citation and quotation marks omitted) — the same

zone of interests test the Ninth Circuit applied in this

case, see 581 F.3d at 846 (App., infra, 11). “lo satisfy

this prudential requirement, a plaintiff must show

that ‘the interest sought to be protected by the com-

plainant is arguably within the zone of interests to be

protected or regulated by the statute or constitutional

guarantee in question.’” Ben Oerhleins, 115 F.3d at

1379 (quoting Ass’n of Data Processing Serv. Orgs. v.

Camp, 397 U.S. 150, 153 (1970)).

The Fighth Circuit found there was “no question”

that the “various waste haulers and processors| |

have standing.” Jd. The ordinance in question “pro-

hibits haulers from delivering designated waste to

Appellees’ Supplemental Brief, filed March 30, 2009, at 12-13

(App., infra, 167).

16

non-designated facilities,” and “[hjaulers who vio-

late the Ordinance are subject to a wide variety of

sanctions.” Jd. “Furthermore, the Ordinance harms

processors such as the landfill plaintiffs who wish to

participate in the market for Hennepin County waste

by prohibiting access to that waste.” Id. The court

accordingly held that the haulers and processors had

Article III standing, and “we see no prudential bar-

riers to standing” either. Id.

The Ninth Circuit panel acknowledged that in

Ben Oehrleins, “the Eighth Circuit found that in-state

haulers and processors had standing to challenge a

local ordinance that required waste designated for in-

state disposal to pass through designated facilities.”

581 F.3d at 849 n.8 (App., infra, 16). The Ninth

Circuit asserted, however, that “(tJhat decision was

made in a single, conclusory sentence, which we de-

cline to follow.” Jd. But its dismissive view is not a

fair characterization of Ben Oehrleins. The Eighth

Circuit discussed Article III and prudential standing

together for the hauler and processor plaintiffs in a

four-paragraph discussion, not in a single, conclusory

sentence. See 115 F.3d at 1378-79.

Moreover, the First Circuit found Ben Oehrleins

persuasive and followed it in a decision that is

equally, if not more, sharply in conflict with the Ninth

Circuit’s decision here. In Houlton Citizens’ Coalition,

the plaintiffs challenged a 1997 local ordinance that

required all generators of residential rubbish within

the Town of Houlton “either to use Houlton’s chosen

17

contractor to transport their trash, or to haul it them-

selves.” 175 F.3d at 181. The First Circuit held that it

could reach the merits of the dormant Commerce

Clause challenge to the ordinance, because one of the

plaintiffs in that case — Faulkner, a “local trash

hauler| J,” 7d. at 182 — had prudential standing, id. at

183.

Faulkner’s economic injury was that “[{hje has

lost the business of his residential customers in

Houlton.” /d. at 183. Significantly, the First Circuit

held that “Faulkner’s claim to standing is not dam-

aged because he failed to allege that he hauled

garbage out-of-state or planned to do so.” Id. (empha-

sis added). The court explained that “an in-state

business which meets constitutional and prudential

requirements due to the direct or indirect effects of

a law purported to violate the dormant Commerce

Clause has standing to challenge that law.” Jd. (cit-

ing, inter alia, Ben Oehrleins).

The Ninth Circuit’s holding in this case directly

conflicts with the First Circuit’s decision in Houlton

Citizens’ Coalition. The Ninth Circuit held that Peti-

tioners here lack prudential standing to assert a dor-

mant Commerce Clause claim because they transport

goods only within one state — but the First Circuit

held that very fact to be immaterial to prudential

standing under the dormant Commerce Clause. 175

F.3d at 183.

18

Il. The Ninth Circuit’s Decision Conflicts

with This Court’s Precedent

The Ninth Circuit’s holding that the shipment of

biosolids “from one portion of California to another”

does not “burden[ ] the recyclers’ protected interest in

the interstate waste market,” 581 F.3d at 847-48

(App., infra, 14), conflicts with this Court’s precedent

and unduly restricts the application of the Commerce

Clause. The shipment of biesolids from one location to

another in California occurs in interstate commerce.

That is why, for example, trucking companies have to

comply with federal minimum wage and overtime

laws and environmental regulations — even if the

companies’ trucks do not cross a state border. For

more than a century, this Court has identified three

general categories in which Congress is authorized to

engage under its commerce power. Gonzalez v. Raich,

545 U.S. 1, 16 (2005). “First, Congress can regulate

the channels of interstate commerce. Second, Con-

gress has authority to regulate and protect the

instrumentalities of interstate commerce and persons

or things in interstate commerce. Third, Congress has

the power to regulate activities that substantially

affect interstate commerce.” /d. at 16-17 (citations

omitted).

This Court repeatedly has held that a local law

which impermissibly regulates interstate commerce is

not saved by the fact that it also discriminates

against certain in-state actors. See C & A Carbone v.

Town of Clarkstown, 511 U.S. 383, 391 (1994); Dean

Milk Co. v. City of Madison, 340 U.S. 349, 354 n.4

19

(1951); Brimmer v. Rebman, 138 U.S. 78 (1891). In

Brimmer, the Court struck down a Virginia state law

criminalizing the sale in Virginia of meat that had

traveled more than 100 miles from the place of

slaughter unless the seller paid a heavy charge for a

local inspection of the meat. The Court noted:

Nor can this statute be brought into har-

mony with the constitution by the circum-

stance that it purports to apply alike to the

citizens of all the states, including Virginia;

for a burden imposed by a state upon inter-

state commerce is not to be sustained simply

because the statute imposing it applies alike

to the people of all the states, including the

people of the state enacting such a statute.

Id. at 82-83; see C & A Carbone, 511 U.S. at 391 (“The

ordinance is no less discriminatory because in-state

or in-town processors are also covered by the pro-

hibition.”). In other words, the law impermissibly

sought to regulate interstate commerce and was there-

fore unconstitutional, even though it discriminated

against some Virginia meat producers as well as out-

of-state meat producers. Under the Ninth Circuit’s

decision here, by contrast, a Virginia meat producer

would have to face the criminal sanction imposed by

the facially unconstitutional statute, even though an

Illinois producer engaging in exactly the same

commercial activity and inhibited by exactly the same

law would be protected by the dormant Commerce

Clause. This cannot be the correct outcome.

20

Moreover, this Court’s case law “firmly estab-

lishes Congress’ power to regulate purely local activi-

ties that are part of an economic ‘class of activities’

that have a substantial effect on interstate com-

merce.” Raich, 545 U.S. at 17 (citations omitted). The

Court applied the substantial effects test in Wickard

v. Filburn, in which it upheld the application of the

Agricultural Adjustment Act of 1938 “to production

not intended in any part for commerce but wholly for

consumption on [respondent’s}] farm.” 317 U.S. 111,

118 (1942). “In Wickard, we had no difficulty con-

cluding that Congress had a rational basis for

believing that, when viewed in the aggregate, leaving

home-consumed wheat outside the regulatory scheme

would have a substantial influence on price and

market conditions.” Raich, 545 U.S. at 19. Likewise,

in Raich, the Court upheld a federal prohibition on

the local cultivation and use of marijuana in Cali-

fornia on the theory that “leaving home-consumed

marijuana outside federal control would similarly

affect price and market conditions.” Jd. Accordingly, it

is well established that intrastate conduct that sub-

stantially affects interstate commerce comes within

the scope of the interstate Commerce Clause.

Wickard and Raich dealt with Congress’ affirma-

tive power to regulate under the Commerce Clause,

rather than the scope of the dormant Commerce

Clause. However, this Court also has explained that

“(t]he definition of ‘commerce’ is the same when relied

on to strike down or restrict state legislation as when

relied on to support some exertion of federal control

21

or regulation.” Hughes v. Oklahoma, 441 U.S. 322,

326 n.2 (1979).

In Camps Newfound/Owatonna, Inc. v. Town of

Harrison, 520 U.S. 564 (1997), the Court held that

the dormant Commerce Clause reaches in-state con-

duct that has a substantial effect on interstate com-

merce. In that case, the Court struck down a state

property tax because its exemption for property

owned by charitable institutions excluded organiza-

tions that were operated principally for the benefit of

nonresidents. The defendant in that case, the Town of

Harrison, argued (as the Ninth Circuit held here)

that the dormant Commerce Clause had no applica-

tion at all because the plaintiff’s business — operating

a summer camp — occurred entirely within the state

of Maine. Id. at 572.

This Court disagreed. It stated that “[s]lummer

camps are comparable to hotels that offer their guests

goods and services that are consumed locally.” Jd. at

573. Previously, in Heart of Atlanta Motel, Inc. v.

United States, 379 U.S. 241 (1964), the Court had

upheld federal regulation of local hotels on the

ground “that commerce was substantially affected by

private race discrimination that limitea access to the

hotel and thereby impeded interstate commerce in

the form of travel.” Camps Newfound/Owatonna, 520

U.S. at 573. Accordingly, the Court explained that

“lajlthough Heart of Atlanta involved Congress’

affirmative Commerce Clause powers,” the reasoning

of that case applied equally to a dormant Commerce

Clause claim. 520 U.S. at 574 (emphasis added).

22

Here, the undisputed evidence shows that

Petitioners’ conduct in transporting and farming with

biosolids within California as part of wastewater

management and pollution control, and the effect of

Measure E on those activities, substantially affects

interstate commerce. For example, Petitioners sub-

mitted the Declaration of Larry Bahr, an expert

on regional biosolids management in California, on

behalf of Petitioner California Association of Sani-

tation Agencies (“CASA”).’ (See App., infra, 130-47.)

Mr. Bahr’s declaration explains at length the

economic impact that Kern’s Measure E would have

on regional markets given the scarcity of landfills

that will take biosolids. For example, Measure E

would result in “higher landfill ‘tipping fees’ to accept

biosolids and possibly longer hauling distances.”

(Bahr Decl. { 22, App., infra, 143.) His declaration

also describes the “out-of-state impacts” caused by

Measure E “as more California agencies look to

Arizona and other locations for alternatives for reuse

and disposal,” noting that “this will increase biosolids

management costs for sanitation agencies and their

ratepayers,” as well as “cause collateral environ-

mental impacts such as air emissions.” (dd. 4 25,

App., infra, 144.) These effects on regional pricing are

the same type of substantial effect on interstate

" See supra n.1. Petitioner CASA has 119 public agency

members that expend tens of millions of dollars annually to

recycle 84% of the biosolids generated in their communities for

beneficial uses.

23

commerce that this Court found in Wickard, Raich,

Brimmer, and C & A Carbone to implicate interstate

commerce.

The Ninth Circuit’s response to this was to hold

that even if all of that is true, Petitioners in this case

do not have standing because their interests do not

implicate interstate commerce: “The interest the re-

cyclers seek to secure is their ability to exploit a

portion of the intrastate waste market — they want to

be able to ship their waste from one portion of

California to another.” 581 F.3d at 847 (App., infra,

14). But the Ninth Circuit’s view that shipping

biosolids from one part of California to another and

the related recycling work does not occur in interstate

commerce conflicts with the long-standing and well

established judicial interpretation of the Commerce

Clause. Brimmer, Dean Milk Co., and C & A Carbone

all held that a local attempt to regulate interstate

commerce is not made constitutional by the fact that

it also discriminates against in-state actors. Wickard

and Raich held that intrastate conduct that sub-

stantially affects interstate commerce falls within the

scope of the Commerce Clause. And Hughes and

Camps Newfound/Owatonna held that the dormant

Commerce Clause is just as broad as the affirmative

Commerce Clause. (Indeed, they are the same clause.

See U.S. Const., art. I, § 8, cl. 3 (App., infra, 109).)

In fact, the Ninth Circuit’s holding that the

intrastate shipment of biosolids does not occur in

interstate commerce is similar to the rejected argu-

ment in Camps Newfound/Owatonna that a summer

24

camp that operated entirely in Maine could not raise

a dormant Commerce Clause claim. Nor does the

Ninth Circuit’s holding address this Court’s repeated

admonitions that restrictions on interstate commerce

erected by political subdivisions of states are equal-

ly subject to dormant Commerce Clause scrutiny.

Fort Gratiot Sanitary Landfill, Inc. v. Mich. Dep't of

Natural Res., 504 U.S. 353, 359 (1992) (“[P]olitical

subdivisions [] may not avoid the strictures of

the Commerce Clause by curtailing the movement of

articles of commerce through the subdivisions of

the State, rather than through the State itself.”);

Associated Indus. of Mo. v. Lohman, 511 U.S. 641, 650

(1994) (“[D]iscrimination is appropriately assessed

with reference to the specific subdivision in which

applicable laws reveal differential treatment.”).

Further, the Ninth Circuit’s holding that “[t]he

interest the recyclers seek to secure, ... to ship their

waste from one portion of California to another” is

outside interstate commerce, 581 F.3d at 847 (App.,

infra, 14), is illogical. Presumably, Petitioners must

comply with federal minimum wage laws and other

federal employment regulations when they employ

truck drivers to transport biosolids within California.

Since the drivers and the biosolids travel in the same

truck, it is difficult to understand how one of them is

traveling in interstate commerce while the other is not.

Indeed, the Ninth Circuit’s view that only the

“intrastate waste market” is at issue in this case, id.,

conflicts with the fact that Petitioners’ land appli-

cation of biosolids in the County is subject to EPA’s

25

Part 503 regulations establishing national standards

for land application, see 40 C.F-R. § 503.1 (App., infra,

120-21). EPA promulgated those regulations pursuant

to the federal Clean Water Act, see 33 U.S.C. § 1345

(App., infra, 112-20), which was enacted pursuant to

the interstate Commerce Clause, see Solid Waste

Agency of N. Cook County v. U.S. Army Corps of

Eng’rs, 531 U.S. 159, 162 (2001). If Petitioners’ land

application programs do not implicate interstate com-

merce, how can EPA regulate local land application at

all?

Congress, in enacting § 1345 of the Clean Water

Act, recognized that the nation’s wastewater infra-

structure — including the beneficial use of sewage

sludge through land application — is a vital part of the

national economy. Furthermore, farming’ with

biosolids, both to meet wastewater treatment needs

and to grow crops for sale into the interstate (and

here, international) markets plainly satisfies the

tests for interstate commerce set in Wickard and

Raich. Even more so for a prudential standing test,

which this Court said “is not meant to be especially

demanding,” the interests of at least one of the eleven

Petitioners (including a trade association representing

119 wastewater agencies statewide) in the transport

and use of biosolids are “arguably within the zone of

interests to be protected or regulated by the statute

or constitutional guarantee in question.” Clarke uv.

Sec. Indus. Ass’n, 479 U.S. 388, 396, 399 (1987). Like

the stock exchanges found to have _ prudential

standing to mount a Commerce Clause challenge to a

26

discriminatory state tax in Boston Stock Exchange v.

State Tax Commission, the eleven diverse Petitioners

here are “asserting their right under the Commerce

Clause to engage in interstate commerce free of

discriminatory [barriers to] their business and they

allege that the [barrier] indirectly infringes on that

right. Thus, they are ‘arguably within the zone of

interest to be protected ... by the ... constitutional

guarantee in question.’” 429 U.S. 318, 320 n.3 (1977)

(quoting Ass’n of Data Processing Serv. Orgs., Inc. v.

Camp., 397 U.S. 150, 153 (1970)).

The transport of biosolids from one location in

California to another and their recycling pursuant to

federal regulations constitute interstate commerce.

The Ninth Circuit’s holding to the contrary conflicts

with this Court’s established precedent. This Court

should issue the writ of certiorari to correct this error.

Ill. The Standing Question Presented in This

Case Is Important and Recurring

The Ninth Circuit’s opinion has a significant im-

pact on the scope of the dormant Commerce Clause.

The decision below holds that local laws seeking to

advance parochial interests are effectively immune

from review under the dormant Commerce Clause as

long as they primarily burden in-state actors. In large

states such as California, Texas, or Florida, an enor-

mous amount of economic activity does not cross a

state border. If all of this economic activity is outside

the dormant Commerce Clause, any given state’s

27

cities and counties are now free to launch trade wars

against each other — precisely the sort of conduct that

a protectionist ordinance such as Measure E invites.

See C & A Carbone, Inc. v. Town of Clarkstown, 511

U.S. 383, 390 (1994) (“The central rationale for

the rule against discrimination is to prohibit state

or municipal laws whose object is local economic

protectionism, laws that would excite those jealousies

and retaliatory measures the Constitution was de-

signed to prevent.”).

This case illustrates the dangers of shielding

local ordinances from dormant Commerce Clause

scrutiny where the burden falls primarily on in-state

actors. Here, the ordinance at issue interferes with

important federal economic and environmental poli-

cies, and overturns long-standing expectations and

tens of millions of dollars in long-term investments by

public and private entities. EPA began actively pro-

moting the recycling of biosolids more than 30 years

ago, after the United States Congress banned ocean

disposal of biosolids. (Bahr Decl. 4 14, App., infra,

139. see 509 F.Supp. 2d at 871, App., infra, 25

(district court findings of undisputed fact).) By 2003,

approximately 60% of sewage sludge nationwide was

treated and applied to farmland. Id. (App., infra, 23).

As the district court found, the collection and treat-

ment of wastewater “is a constant, non-discretionary

governmental function. In other words, government

agencies cannot decide to stop producing biosolids

and instead must find ways to manage those that are

produced.” Jd. (App. infra, 25). Many of America’s

28

largest cities — including Chicago, Denver, Philadel-

phia, Seattle, Charlotte, New York City, and many

others — depend on land application of biosolids and

need access to the federal courts when rural counties

target their biosolids with discriminatory restric-

tions.”

California wastewater agencies manage approxi-

mately 750,000 dry tons of biosolids per year, and,

consistent with EPA’s policy and regulations, dispose

of more than 500,000 tons of that via options in-

volving land application. (Bahr Decl. {4 18-19, App.,

infra, 141-42.) The City of Los Angeles generates 700

tons of biosolids a day, and is committed to recycling

all of it via land application. (Minamide Decl. 4 31,

ER 130.) Orange County Sanitation District gener-

ates approximately 680 tons of biosolids a day, and

recycles 60% of it through land application. (Ghirelli

Decl. ¥ 6, ER 177.) At this time, approximately one-

third of all the biosolids generated in California are

recycled through the facilities in the County, which

Respondents now seek to close. (Bahr Decl. { 24,

App., infra, 143-44.)

Petitioners have spent tens of millions of dollars

on long-term contracts and improvements in the

County. Since 1994, Petitioner City of Los Angeles

* See generally amicus brief submitted to the Ninth Circuit

by the National Association of Clean Water Agencies (explaining

widespread and critical role of land application in biosolids

management nationwide).

29

has focused on building a long-term land application

program at Green Acres; the City bought the site

outright in 1999 for nearly $10 million, and spent

a further $3 million’ constructing permanent

improvements on it. (Minamide Decl. Q{ 22, 31, ER

127-28, 130; see id. 4 43, ER 135 (“The only reason

the City purchased Green Acres was to land apply

responsibly and farm with biosolids, and there is no

indication that the Farm will be economically viable

without the use of biosolids.”).) When Kern passed an

ordinance in 1999 regulating the quality of biosolids

applied in the County, the City in good faith spent

more than $15 million upgrading its wastewater

treatment facilities to comply with Kern’s require-

ments. Ud. J 21-22, ER 127-28.)

Banning land application of biosolids in the

County and forcing Petitioners to move their long-

standing programs elsewhere will impose enormous

costs on the governmental! Petitioners, and therefore

on their ratepayers. For example, enforcement of

Measure E will increase costs to the City cf Los

Angeles by at least two-thirds, if not significantly

more, a difference of more than $4 million a year. (/d.

4 33-37, ER 131-32.) Such a major change in Peti-

tioners’ biosolids program will also incur enormous

administrative costs over several years of planning.

(E.g., id. YY 42-44, ER 134-35.)

Enforcement of Measure E also will significantly

increase air pollution in Southern California. Cur-

rently, the Green Acres site alone receives and

processes approximately 26 tractor trailer loads of

30

biosolids per day. 509 F. Supp. 2d at 873 (App., infra,

29) (district court findings of undisputed fact).

Enforcement of Measure E will force Petitioners to

ship their biosolids to sites as far as 350 miles away.

(Minamide Decl. 4 34, ER 131.) This change will more

than double the air pollution produced by Petitioners’

recycling programs. (/d. ] 46, ER 136.)

Kern is a leading agricultural county. Its ban, if

upheld, will likely encourage other counties to enact

similar bans or onerous restrictions on biosolids land

application, compelling wastewater agencies to com-

pete further for the dwindling land application sites,

and ultimately forcing more and more of California’s

biosolids to be shipped out of state. (See Bahr Decl.

q{ 27, App., infra, 145.) As the district court opinion

pointed out, there are “no ‘Friends of Sludge’ to

mount opposition” to such initiatives. 509 F. Supp. 2d

at 869 (App., infra, 19). Measure E will severely

destabilize biosolids management in California, and

its ripple effects will only cause more irreparable

harm to a vital, multi-million dollar market.

These harmful economic and environmental ef-

fects are the logical result of shielding local ordi-

nances from dormant Commerce Clause scrutiny

where in-state actors are the targeted parties. The

Ninth Circuit’s decision unleashes every municipality

to engage in openly discriminatory trade wars against

other municipalities in the same state, which un-

doubtedly will have a significant effect on interstate

commerce. The Ninth Circuit’s decision is contrary to

those of the First and Eighth Circuits, is in sharp

31

conflict with this Court’s precedents, and presents

recurring problems that warrant this Court’s review.

¢

CONCLUSION

For the foregoing reasons, a writ of certiorari

should issue.

Respectfully submitted,

DAVID SALMONS

Counsel of Record

THOMAS S. HIXSON

MARC R. BRUNER

BINGHAM MCCUTCHEN LLP

2020 K Street, NW

Washington, D.C. 20006-1806

(202) 373-6000

david.salmons@bingham.com

Counsel for Petitioners City of Los Angeles,

Responsible Biosolids Management, Inc., R&G

Fanucchi Farms, Inc., and Sierra Transport, Inc.

CARMEN A. TRUTANICH

EDWARD JORDAN

KEITH W. PRITSKER

City of Los Angeles

1800 City Hall

200 North Main Street

Los Angeles, CA 90012-4110

(213) 978-8100

ted jordan@lacity.org

Counsel for Petitioner City of Los Angeles

JAMES B. SLAUGHTER

GARY J. SMITH

BEVERIDGE & DIAMOND P.C.

1350 I Street, N.W., Suite 700

Washington, D.C. 20005-3311

(202) 789-6000

jslaughter@bdlaw.com

Counsel for Petitioners City of Los Angeles,

Responsible Biosolids Management, Inc., R&G

Fanucchi Farms, Inc., and Sierra Transport, Inc.

MICHAEL J. LAMPE

LAW OFFICES OF MICHAEL J. LAMPE

108 W. Center Avenue

Visalia, CA 93291

(559) 738-5975

mjl@lampe-law.com

Counsel for Petitioner Shaen Magan, individually

and d/b/a Honey Bucket Farms and Tule Ranch/

Magan Farms

DANIEL V. HYDE

PAUL J. BECK

LEWIS BRISBOIS BISGAARD & SMITH LLP

221 N. Figueroa Street, Suite 1200

Los Angeles, CA 90012-2601

(213) 250-1800

hyde@lbbslaw.com

Counsel for Petitioner County Sanitation District

No. 2 of Los Angeles County

ROBERTA L. LARSON

SOMACH SIMMONS & DUNN, P.C.

500 Capitol Mall, Suite 1000

Sacramento, CA 95814

(916) 446-7979

blarson@somachlaw.com

Counsel for Petitioner California Association of

Sanitation Agencies

BRADLEY R. HOGIN

RICIA HAGER

WoOoDRUFF, SPRADLIN & SMART

555 Anton Boulevard, Suite 1200

Costa Mesa, CA 92626

(714) 558-7000

bhogin@wss-law.com

Counsel for Petitioner Orange County Sanitation

District

Dated: March 15, 2010

App. l

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CiTy OF LOS ANGELES; ORANGE

COUNTY SANITATION DISTRICTS;

RESPONSIBLE BIOSOLIDS MANAGE-

MENT, INC.; R & G FANUCCHI INC.;

SIERRA TRANSPORT INC.; CALI-

FORNIA ASSOCIATION OF SANITA-

TION AGENCIES; SHAEN MAGAN,

individually and dba's Honey

Bucket Farms; Tule Ranch/

Magan Farms; WESTERN

EXPRESS INC.,

Plaintiffs-Appellees,

and

KERN COUNTY WATER AGENCY;

ASSOCIATION OF IRRITATED REsI-

DENTS; ARVIN-E,DISON WATER

STORAGE DISTRICT; KERN WATER

BANK AUTHORITY,

Intervenors,

2

COUNTY OF KERN; KERN COUNTY

BOARD OF SUPERVISORS,

Defendants-Appellants.

No. 07-56564

D.C. No.

CV -06-05094-GAF

OPINION

App. 2

Appeal from the United States District Court

for the Central District of California

Gary A. Feess, District Judge, Presiding

Argued and Submitted March 2, 2009

Submission vacated March 19, 2009

Resubmitted September 9, 2009

Pasadena, California

Filed September 9, 2009

Before: Diarmuid F. O’Scannlain, Pamela Ann Rymer,

and Kim McLane Wardlaw, Circuit Judges.

Opinion by Judge O’Scannlain

COUNSEL

Steven L. Mayer, Howard Rice Nemerovski Canady

Falk & Rabkin, San Francisco, California, argued the

cause for defendants-appellants and filed the briefs.

Jerome B. Falk, Jr. and Adam Polakoff, Howard Rice

Nemerovski Canady Falk & Rabkin, San Francisco,

California; Bernard C. Barmann and Stephen D.

Schuett, County of Kern, Bakersfield, California; and

Michael M. Hogan, Hogan Guiney Dick LLP, San

Diego, California, were also on the briefs.

Thomas S. Hixon, Bingham McCutchen LLP, Los

Angeles, California, argued the cause for plaintiffs-

appellees and was on the briefs. James J. Dragna and

Marc R. Bruner, Bingham McCutchen LLP, Los

Angeles, California; Rockard J. Delgadillo,

Christopher M. Westhoff, and Keith W. Pritsker, City

of Los Angeles, Los Angeles, California; James B.

Slaughter and Gary J. Smith, Washington, District of

App. 3

Columbia; Daniel V. Hyde and Paul J. Beck, Lewis

Brisbois Bisgaard & Smith LLP, Los Angeles,

California; Bradley R. Hogin, Woodruff Spradlin &

Smart, Orange, California; Michael J. Lampe, Law

Offices of Michael J. Lampe, Visalia, California; and

Roberta L. Larson and Jonathan Schutz, Somach

Simmons & Dunn, Sacramento, California, were also

on the briefs.

James Sullivan, Water Environment Federation,

Alexandria, Virginia, filed a brief on behalf of Amicus

Curiae Water Environment Federation.

Keith J. Jones, National Association of Clean Water

Agencies, Washington, District of Columbia, filed a

brief on behalf of Amicus Curiae National Association

of Clean Water Agencies. Nathan Gardner-Andrews,

National Association of Clean Water Agencies,

Washington, District of Columbia, was also on the

brief.

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether recyclers challenging a

local ordinance that bans a particular method of

waste disposal have prudential standing to raise

its constitutionality under the dormant Commerce

Clause.

The fact that the subject matter of the case

before us involves sewage sludge will be of no sur-

prise to those familiar with the negative implications

of the Commerce Clause. For our purposes, sludge is

the “solid, semi-solid, or liquid residue generated

during the treatment of domestic sewage.” 40 C.F.R.

§ 503.9(w). Here, we deal with the “land application”

of “biosolids”: essentially, a particular recycling meth-

od which involves the use of treated sludge as

fertilizer.’ See 40 C.F.R. § 503.11(h) (“Land applica-

tion is the spraying or spreading of sewage sludge

onto the land surface; the injection of sewage sludge

below the land surface; or the incorporation of sewage

sludge into the soil so that the sewage sludge can

either condition the soil or fertilize crops or

vegetation grown in the soil.”).

In 2006, voters in Kern County, California

(“Kern”), adopted a local ordinance (“Measure E” or

the “Ordinance”) by ballot initiative that makes it

' The local ordinance before us defines biosolids as “treated

solid, semi-solid or liquid residues generated during the treat-

ment of sewage in a wastewater treatment works and in-

clud{ing) material derived from or containing sewage sludge

such as compost and pelletized sewage sludge, irrespective of

where generated, produced or treated.” The measure describes

land application as “the spraying, spreading or other placement

of Biosolids onto the land surface, the injection of Biosolids

below the surface, or the incorporation of Biosolids into the soil.”

App. 5

“unlawful for any person to Land Apply Biosolids to

property within the unincorporated area of the

County.” Violation of the Ordinance is a misdemeanor

punishable by “a fine of not more than $500 or by

imprisonment of not more than six months.” By its

terms, the Ordinance applies to both in-county and

out-of-county waste generators. In practical effect,

however, because Kern does not currently apply its

biosolids to land within the county, Measure E does

not directly impact Kern’s own waste disposal

programs.

Prior to the Ordinance, in-state waste generators

frequently disposed of their biosolids by land applica-

tion at various farms throughout the unincorporated

area of Kern County.’ For example, the City of Los

Angeles, Orange County Sanitation District, and

County Sanitation District No. 2 of Los Angeles

County ship large amounts of waste generated by

their residents to Green Acres, Honey Bucket Farms,

and Tule Ranch. If these generators were precluded

from land applying their biosolids in Kern County,

they would be required to find alternative locations to

dispose of their sludge. They have submitted declara-

tions pointing to Arizona as a probable destination,

and asserting that this site change would result in

increased transportation costs.

* Consequently, campaign literature supporting the passage

of Measure E claimed that it would “stop L.A. from dumping on

Kern.”

App. 6

B

These out-of-county generators, along with waste

transporters and in-county farmers (collectively, “the

recyclers”), filed suit in the United States District

Court for the Central District of California. They

alleged that Measure E violated the dormant Com-

merce Clause and the Equal Protection Clause and

was preempted by the Federal Clean Water Act, the

California Integrated Waste Management Act

(“CIWMA”), and the California Water Code. They also

asserted that it constituted an invalid exercise of

Kern’s police power. The district court initially

dismissed the Clean Water Act and the California

Water Code claims under Federal Rule of Civil Proce-

dure 12(b)\6), while granting the recyclers’ request

for a preliminary injunction halting enforcement of

Measure E. The parties filed cross motions for sum-

mary judgment.

The district court granted Kern’s motion for

summary judgment on the recyclers’ equal protection

claim, and denied summary judgment on the police

power claim, citing the existence of disputed facts. As

for the dormant Commence [sic] Clause, the district

court concluded that Measure E discriminated

against interstate commerce in effect. Accordingly,

the court applied strict scrutiny, determined the

Ordinance could not survive, and granted summary

judgment in favor of the recyclers. The district court

also exercised supplemental jurisdiction over the

recyclers’ CIWMA claim under 28 U.S.C. § 1367 and

held that Measure E was preempted by state law.

App. 7

Kern timely filed this appeal, challenging only

the district court’s rulings on the dormant Commerce

Clause and state-law preemption claims.

II

We first assess whether the recyclers have

standing to bring suit under the dormant Commerce

Clause. That inquiry involves “both constitutional

limitations on federal-court jurisdiction and pruden-

tial limitations on its exercise.” Warth v. Seldin, 422

U.S. 490, 498 (1975). “Constitutional [or “Article III”]

standing concerns whether the plaintiff’s personal

stake in the lawsuit is sufficient to make out a

concrete ‘case’ or ‘controversy’ to which the federal

judicial power may extend under Article III, § 2.”

Pershing Park Villas Homeowners Ass’n v. United

Pac. Ins. Co., 219 F.3d 895, 899 (9th Cir. 2000); see

also Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-

60 (1992). These limits are jurisdictional: they cannot

be waived by any party, and there is no question that

a court can, and indeed must, resolve any doubts

about this constitutional issue sua sponte. See, e.g.,

Indep. Living Ctr. of S. Cal., Inc. v. Shewry, 543 F.3d

1050, 1064-65 (9th Cir. 2008). Here, no party con-

tends the recyclers lack Article III] standing, and we

are independently satisfied that they have met the

requirements of Lujan.

Over and above the limits of Article III, however,

there exists a body of “judicially self-imposed limits

on the exercise of federal jurisdiction,” Allen uv.

App. 8

Wright, 468 U.S. 737, 751 (1984), “founded in concern

about the proper — and properly limited — role of the

courts in a democratic society,” Warth, 422 U.S. at

498. Citing their nonconstitutional nature, we have

previously held that these requirements, commonly

referred to as “prudential” standing, “can be deemed

waived if not raised in the district court.” Bd. of

Natural Res. v. Brown, 992 F.2d 937; 946 (9th Cir.

1993).*

A

Because Kern admittedly failed to raise pru-

dential standing before the district court,” we must

satisfy ourselves that we should address the matter

in the first instance. At times, we have exercised our

prerogative to “deem” this issue waived in such cir-

cumstances. See, e.g., Laub v. U.S. Dep’t of Interior,

342 F.3d 1080, 1087 n.6 (9th Cir. 2003); Pershing

° Other circuits have taken a different tack. See Am.

Immigration Lawyers Ass'n v. Reno, 199 F.3d 1352, 1357-58

(D.C. Cir. 2000) (prudential standing is non-waivable); Cmty.

First Bank v. Nat'l Credit Union Admin., 41 F.3d 1050, 1053 (6th

Cir. 1994) (same); Thompson v. County of Franklin, 15 F.3d 245,

248 (2d Cir. 1994) (same).

* Kern’s appeal was confined to the district court’s rulings

on the federal constitutional question and state law preemption.

We had concerns, however, as to whether the recyclers had

prudential standing to bring this claim under the dormant

Commerce Clause. Accordingly, we directed the parties to

discuss the issue at oral argument and requested that they file

supplemental briefs.

App. 9

Park, 219 F.3d at 899-900. Past practice, however,

does not preclude our consideration of the subject in

the case at hand. Rather, the permissive language in

our caselaw — “can be deemed” — indicates that the

choice to reach the question lies within our discretion.

We are also mindful of the Supreme Court’s

description of constitutional and prudential standing

as “threshold determinants of the propriety of judicial

intervention.” Warth, 422 U.S. at 518.

The Seventh Circuit’s opinion in Mainstreet

Organization of Realtors v. Calumet City, 505 F.3d

742 (7th Cir. 2007), is instructive. In that case, the

court reached the issue of prudential standing, de-

spite the “wrinkle” that “the City did not argue

[prudential standing] until [the panel] raised the

issue at oral argument.” Id. at 747. “[NJjonconstitu-

tional lack of standing,” according to the Seventh

Circuit, “belongs to an intermediate class of cases in

which a court can notice an error and reverse on the

basis of it even though no party has noticed it and the

error is not jurisdictional, at least in the conventional

sense.” Id.; see also id. at 747-48 (citing failure to

exhaust state remedies in habeas cases and absten-

tion as examples); cf. Tenet v. Doe, 544 U.S. 1,6 n.4

(2005) (“L[A]pplication of the Totten rule of dismissal,

like the abstention doctrine ... or the prudential

standing doctrine, represents the sort of ‘threshold

question’ we have recognized may be resolved before

addressing jurisdiction.” (emphasis added) (citation

omitted)).

App. 10

Thus, we may cite a party’s “failure to invoke

[prudential standing)” as “a ground for refusing to

invoke it” on our own initiative: such failure, how-

ever, does not bar our examination of the matter.

Mainstreet, 505 F.3d at 749. “In other words, [we]

may raise an unpreserved prudential-standing ques-

tion on [our] own, but unlike questions of constitu-

tional standing, |we are] not obliged to do so.” Rawoof

v. Texor Petroleum Co., 521 F.3d 750, 757 (7th Cir.

2008).

We recognize that at times, the “prudential objec-

tives{ ] thought to be enhanced” by standing restric-

tions “cannot be furthered” by consideration of an

unpreserved argument. See Craig v. Boren, 429 U.S.

190, 193-94 (1976). Here, we have provided the

parties with an opportunity fully to brief the issue,

and further development of the record would not aid

our decisionmaking process. Those briefs indicate

that at least one of the parties (Kern) “resist|[s]” an

“authoritative ... determination” by this court. Id. at

193. Our disposition of the prudential standing

question might also affect the district court’s decision

under 28 U.S.C. § 1367 to exercise jurisdiction over

the state-law claims.

Perhaps most importantly, a ruling on prudential

standing could obviate the need to rule on the merits

of the dormant Commerce Clause challenge. In such

circumstances, “we are guided by the traditional prin-

ciple that a federal court should not decide federal

constitutional questions where a dispositive noncon-

stitutional ground is available. This rule against

App. 11

unnecessary constitutional adjudication applies even

when neither the trial court nor the parties have

considered the nonconstitutional basis for decision.”

Correa v. Clayton, 563 F.2d 396, 400 (9th Cir. 1977)

(internal quotation marks and citations omitted).

[1] Accordingly, we choose to exercise our dis-

cretion to rule on the recyclers’ prudential standing to

bring this suit.

B

{2] Several doctrines fall under the rubric of

“prudential standing.” Here, we consider only “the

zone of interests test[, which] governs claims under

the Constitution in general, and under the negative

[dormant] Commerce Clause in particular.” Jndivid-

uals for Responsible Gov't, Inc. v. Washoe County, 110

F.3d 699, 703 (9th Cir. 1997) (second alteration

in original) (internal quotation marks and citation

omitted); see also Clarke v. Sec. Indus. Ass’n, 479 U.S.

388, 396 (1987) (noting that interests must be

“arguably within the zone of interests to be protected

or regulated by the statute or constitutional guaran-

tee in question” (internal quotation marks and

citation omitted)). While the test “is not meant to be

especially demanding,” Clarke, 479 U.S. at 399, a

party’s “complaint must ‘fall within the zone of

interests to be protected or regulated by the statute

or constitutional guarantee in question.’” Washoe

County, 110 F.3d at 703 (quoting Valley Forge Chris-

tian Coll. v. Ams. United for Separation of Church &

App. 12

State, Inc., 454 U.S. 464, 475 (1982)). Thus, this

prudential standing requirement “denies a right of

review if the plaintiff’s interests are ... marginally

related to or inconsistent with the purposes implicit

in the [relevant constitutional provision].” Jd. (altera-

tions in original) (internal quotation marks and

citation omitted).

[3] Accordingly, to “ascertain whether [the recy-

clers] have standing to raise the dormant Commerce

Clause challenge in the present case, [we] must ...

determine[ ] whether their interests bear more thana

marginal relationship to the purposes underlying the

dormant Commerce Clause.” Jd. We have previously

concluded that the “chief purpose underlying [the]

Clause is to limit the power of States to erect barriers

against interstate trede.” Jd. (internal quotation

marks and citation omitted); see also Fort Gratiot

Sanitary Landfill, Inc. v. Mich. Dep’t of Natural Res.,

504 U.S. 353, 359 (1992) (“[T]he ‘negative’ or ‘dor-

mant’ aspect of the Commerce Clause prohibits States

from ‘advancling] their own commercial interests by

curtailing the movement of articles of commerce,

either into or out of the state.’” (alternation [sic] in

original) (quoting H.P. Hood & Sons, Inc. v. Du Mond,

336 U.S. 525, 535 (1949))).° The question, therefore, is

whether the recyclers’ claims “bear more than a

marginal relationship” to claims addressing a state or

* A state’s political subdivisions are likewise precluded from

impeding interstate commerce. See, e.g., Carbone, 511 U.S. at

390.

App. 13

county's effort to erect barriers to interstate com-

merce. |

Our decision in Washoe County provides the

answer to this question. In that case, we addressed

Nevada county ordinances which required residents

to employ garbage collection services run by “the

County and its authorized agents or contractees.”

Washoe County, 110 F.3d at 701. “[P]rior to enactment

of the ordinances, [some residents had] transported

their garbage across state lines for disposal at the

dump sites in ... California.” Id. at 703. Displeased

with paying for a service they did not desire, these

residents brought suit, alleging that the ordinance

violated the dormant Commerce Clause insofar as it

“preventied| them from utilizing dump sites outside

the State of Nevada.” Id. at 702. We held that though

the residents met the constitutional requirements for

standing, they failed to satisfy the prudential limita-

tions. Id. at 702, 704. Paying for unwanted garbage

collection services - even if one had previously

dumped out of state ~ was “an injury not even mar-

ginally related to the purposes underlying” the

Clause. /d. at 703. We posited that even if all

residents forced to pay for garbage collection services

had previously transported their waste across state

lines, the litigants’ claim could not meet the zone of

interests test. “Their injury (being forced to pay for

services they did not want) would exist even if the

[garbage collection service] were to dump all the

garbage it collects from Nevada across the state line

in California. Under those circumstances, the Washoe

App. 14

County ordinance would impose no barrier to

interstate commerce.” Jd. at 703-04; see also On the

Green Apartments L.L.C. v. City of Tacoma, 241 F.3d

1235, 1239-40 (9th Cir. 2001) (reaching the same

conclusion with respect to a similar waste disposal

ordinance).

{4] Such analysis controls the case at hand. The

interest the recyclers seek to secure is their ability to

exploit a portion of the intrastate waste market —

they want to be able to ship their waste from one

portion of California to another. But as we have said,

the “chief purpose underlying [the dormant Com-

merce) Clause is to limit the power of States to erect

barriers against interstate trade.” Washoe County, 110

F.3d at 703 (emphasis added) (internal quotation

marks and citation omitted). Nothing in Measure E

hampers the recyclers’ ability to ship waste out of

state. Likewise, no recycler claims to apply out-of-

state waste to land in Kern County. In short, Measure

FE in no way burdens the recyclers’ protected interest

in the interstate waste market. We decline to expand

the zone of interests protected by the Clause to purely

intrastate disputes.

[5] The recyclers miss the point when they con-

tend that if Measure E stands, some of them will be

forced to pay higher fees to ship their waste to

different sites, likely in Arizona. While this injury-in-

fact suffices for Article III purposes, see Washoe

County, 110 F.3d at 702, it is insufficient to establish

prudential standing. As the name implies, the zone of

interests test turns on the interest sought to be

App. 15

protected, not the harm suffered by the plaintiff. See

Ass’n of Data Processing Serv. Orgs., Inc. v. Camp,

397 U.S. 150, 153 (1970) (“[The zone of interests test]

concerns ... the question whether the interest sought

to be protected by the complainant is arguably ...

protected or regulated by the statute or constitutional

guarantee in question.” (emphasis added)). Financial

injury, standing alone, does not implicate the zone of

interests protected by the dormant Commerce Clause.

That financial injury must somehow be tied to a

barrier imposed on interstate commerce. The recy-

clers here have not established that requisite link.*

Like the residents in Washoe County, they would

suffer the same injury (being forced to pay higher

prices for biosolid disposal) if Measure E permitted

land application from out-of-state entities, but pro-

hibited land application from in-state entities. “Under

those circumstances,” Measure E would “impose no

barrier to interstate commerce,” Washoe County, 110

F.3d at 704, yet the harm to the recyclers would be

the same.’ Therefore, we cannot conclude that the

* The recyclers contend that they generally engage in

interstate commerce and that the Supreme Court has described

waste as an article of interstate commerce. See Fort Gratiot, 504

U.S. at 359. Neither fact, however, links the financial injury

they allege in this case with an impediment to interstate

commerce.

7 ) - °

For this reason, the recyclers’ claims are more analogous

to the claims of the residents in Washoe County, see 110 F.3d at

703; On the Green, 241 F.3d at 1239-40, than the apartment

complex in On the Green, see 241 F.3d at 1241. Moreover, the

ordinance in On the Green barred the plaintiff from engaging in

(Continued on following page)

App. 16

recyclers alleged injury is tied to the purposes

animating the dormant Commerce Clause.

In their supplemental brief, the recyclers discuss

a number of cases where courts have determined that

in-state plaintiffs have prudential standing to bring

suit under the dormant Commerce Clause. See, e.g.,

Carbone, 511 U.S. at 387-88; Gen. Motors Corp. v.

Tracy, 519 U.S. 278, 286-87 (1997); Or. Waste Sys.,

Inc. v. Deptt of Envtl. Quality, 511 U.S. 93, 97-98

(1994); Huish Detergents, 214 F.3d at 711-12. All of

those cases, however, involve impediments to in-state

plaintiffs’ access to out-of-state markets, restrictions

on the ability of out-of-state entities to make use of

in-state plaintiffs’ services, or burdens on out-of-state

entities which were passed on to in-state plaintiffs.

See Carbone, 511 U.S. at 388; Tracy, 519 U.S. at 286-

87; Or. Waste Sys., 511 U.S. at 96-97; Huish Deter-

gents, 214 F.3d at 711.° No such allegations are

present in this case. Rather, the recyclers either

interstate commerce. Measure E creates no such prohibition. Cf.

Huish Detergents, Inc. v. Warren County, 214 F.3d 707, 711 (6th

Cir. 2000) (concluding that prudential standing was established

when plaintiffs’ financial injury would disappear “if it could hire

a waste hauler to transport its waste out-of-state” (emphasis

added)).

* In Ben Oehrleins & Sons & Daughter, Inc. v. Hennepin

County, 115 F.3d 1372 (8th Cir. 1997), the Eighth Circuit found

that in-state haulers and processors had standing to challenge a

local ordinance that required waste designated for in-state

disposal to pass through designated facilities. id. at 1377-79.

That decision was made in a single, conclusory sentence, which

we decline to follow. Id. at 1379.

App. 17

contend that Measure E prevents them from shipping

their waste intrastate, or that they are denied the

benefits of such shipments. As we have discussed

above, such circumstances do not implicate the

interests protected by the dormant Commerce Clause.

[6] Accordingly, because the recyclers’ injury is

not even “marginally related” to the interests the

Clause seeks to safeguard, they lack prudential

standing to bring their federal constitutional] claim.

ill

[7] Based on the foregoing, we dismiss the recy-

clers’ claims under the dormant Commerce Clause.

With that, we are left with a complex question of

state-law preemption. Because our dismissal of the

federal constitutional claim may materially alter

the district court’s decision to exercise supplemental

jurisdiction over the preemption claim, see, e.g.,

Golden v. CH2M Hill Hanford Group, Inc., 528 F.3d

681, 684 (9th Cir. 2008), we vacate its judgment and

remand the state-law claim for reconsideration of the

factors listed in 28 U.S.C. § 1367.

DISMISSED in part, VACATED in part, and

REMANDED.

App. 18

UNITED STATES DISTRICT COURT

FOR THE CENTRAL

DISTRICT OF CALIFORNIA

CITY OF LOS ANGELES, ) Case No.

ot al. ) CV#06-5094 GAF (VBKx)

Plaintiffs, ) ORDER RE: CROSS-

: MOTIONS FOR SUM-

MARY JUDGMENT,

COUNTY OF KERN, ) PLAINTIFFS’ MOTION

ot al. TO STRIKE

Defendants. ) (Filed Aug. 10, 2007)

I.

INTRODUCTION

Plaintiffs City of Los Angeles, Orange County

Sanitation District, and County Sanitation District

No. 2 of Los Angeles County generate large amounts

of sewage treatment residues known as “sludge” or

“biosolids,” some substantial portion of which they

ship to farmland located in unincorporated areas of

Kern County for use as fertilizer. This arrangement

has, perhaps predicably [sic], aroused substantial

local opposition in Kern County even though the EPA

considers land application to be a safe, effective

means of recycling biosolids.

That opposition reached a fever pitch in 2006

when a local State Senator sponsored a ballot initia-

tive known as Measure E, which sought to ban land

application of biosolids in the unincorporated areas of

App. 19

the County. The initiative campaign included colorful

attacks on “Los Angeles sludge” and drew on long-

simmering anti-Southern California sentiment for

support. There being no “Friends of Sludge” to mount

opposition to the initiative, the ordinance passed

overwhelmingly, and therefore threatened to perma-

nently ban Plaintiffs from further land application at

their Kern County facilities. And though the ban may

at first impression appear to eliminate all land ap-

plication of sludge in Kern County, it actually im-

poses relatively few burdens on in-county interests.

Without acknowledging any irony, Kern County ships

its materials to a local composting company for sale

to private firms out of its jurisdiction. Moreover, local

cities continue to apply biosolids on land in their in-

corporated areas which are outside of Kern County’s

jurisdiction. By contrast, Measure E would effectively

force Plaintiffs out of the County.’

In an effort to preserve their biosolids recycling

programs, the government Plaintiffs, along with pri-

vate firms and individuals that handle the material,

filed suit against Defendants Kern County and Kern

County Board of Supervisors (collectively “Kern”) on a

variety of constitutional and statutory grounds. After

dismissing some of their claims, City of Los Angeles v.

County of Kern, No. CV 06-5094, 2006 WL 3073172

(C.D. Cal. Oct. 24, 2006) (“Kern I”), this Court

‘ For convenience, the Court refers to the political entity as

“Kern” and the geographic region as the “County.”

App. 20

preliminarily enjoined enforcement of Measure E, as

it concluded that Plaintiffs, though not likely to suc-

ceed on their Equal Protection claim, demonstrated

irreparable harm and a likelihood of success on their

claims that Measure E (1) violated the dormant Com-

merce Clause; (2) was preempted by the California

Integrated Waste Management Act (*“CIWMA”); and

(3) exceeded Kern’s police power under the California

Constitution. City of Los Angeles v. County of Kern,

462 F. Supp. 2d 1105 (C.D. Cal. 2006) (“Kern IT”).

Kern has now moved for summary judgment on

all claims, and Plaintiffs have filed a cross motion for

summary judgment on the CIWMA claim. In their

opposition to Kern’s motion for summary judgment,

Plaintiffs also ask the Court to enter summary judg-

ment in favor of their Commerce Clause and police

power claims (though not in favor of their Equal

Protection claim).

The Court agrees with Kern that Plaintiffs’ Equal

Protection claim fails as a matter of law. Measure E

rationally furthers legitimate local interests in guard-

ing against potential environmental harm and nui-

sance associated with biosolids, and Plaintiffs have

failed to demonstrate that these purposes were

merely pretextual. Although the campaign attacks on

“Los Angeles sludge” certainly demonstrated ani-

mosity towards the government Plaintiffs, this ani-

mosity was directly related to the perceived harm

Measure E legitimately sought to redress. In short,

Plaintiffs were rationally perceived as polluters, and

so a campaign including rhetoric against them does

App. 21

not mean Measure E’s stated environmental purposes

were mere pretext for something more nefarious.

Moreover, Measure E advanced Kern’s environmental

interests by banning the perceived pollutants. Meas-

ure E is therefore not irrational, and thus survives

scrutiny under the Equal Protection clause.

By contrast, Measure E faces stricter scrutiny

under the Commerce Clause because of the ban’s dis-

criminatory effects against interstate commerce when

viewed County-wide. In short, while the campaign

attacks on “Los Angeles sludge” are compatible with

Measure E’s apparent legitimate purpose under

Equal Protection jurisprudence, the attacks graph-

ically expose Measure E’s objective of removing Plain-

tiffs’ operations from the County as a whole, which

would force them to locate and develop alternate

recycling sites, most probably in Arizona. But at the

same time that Measure E is forcing Los Angeles and

others out of Kern County, it allows in-county sludge

producers to continue disposing of their biosolids

locally, thus accomplishing its legitimate environ-

mental purpose through impermissible means. This

discriminatory effect requires the Court to subject

Measure E to strict scrutiny, which it cannot with-

stand because Kern could easily have guarded

against the perceived environmental harm with a

more tailored regulation regarding the location,

quality, and volume of biosolids that could be applied

to land. Plaintiffs therefore prevail as a matter of law

on their Commerce Clause claim.

App. 22

Also meritorious is Plaintiffs’ CIWMA claim.

Plaintiffs present the same argument that the Court

accepted in granting the preliminary injunction: that

CIWMA expresses a statewide policy of promoting

recycling over other disposal methods for “solid

waste,” which the statute defines to include biosolids.

Therefore, Plaintiffs argue, a ban on land application

frustrates this statutory purpose and thus is invalid

because of conflict preemption, notwithstanding a

savings clause that allows local regulations so long as

they do not conflict with the policies expressed by the

statute. Though Kern advances a barrage of argu-

ments to the contrary, each is fairly easily rejected.

Finally, the Court cannot summarily resolve the

police powers cause of action. Kern’s motion against

this claim is based solely on arguments that — in-

correctly — contend Measure E is exempt from the

“regional welfare” doctrine which limits exercises of

the police power. On the other hand, Plaintiffs’ motion

fails because disputes remain as to the impact of their

biosolids operations on the local environment and the

impact of Measure E on the surrounding region.

However, because the police powers claim would

involve significant expense to litigate and because

Plaintiffs’ Commerce Clause and CIWMA preemption

claims entitle them to all the relief sought, the Court

shall grant Plaintiffs’ request for entry of final

judgment pursuant to Rule 54(b) of the Federal Rules

of Civil Procedure.

App. 23

II.

STATEMENT OF FACTS

The following facts are undisputed and reflect

the Court’s ruling on the parties’ evidentiary objec-

tions.

A. OVERVIEW OF BIOSOLIDS

EPA regulations define “sewage sludge,” also

referred to as “biosolids,” as the “solid, semi-solid, or

liquid residue generated during the treatment of

domestic sewage in a treatment works.” 40 C.F.R.

§ 503.9(w). Municipalities typically dispose of sewage

sludge in one of several ways, one of which is known

as “land application.” “Land application” means the

spraying, spreading or other placement of biosolids

onto the land surface, the injection of biosolids below

the surface, or the incorporation of biosolids into the

soil. Jd. § 503.9(h). In 2003, the EPA estimated that

approximately 60 percent of sewage sludge nation-

wide was treated and applied to farmland; of the

remaining 40 percent, 17 percent was buried in

landfills, 20 percent was incinerated, and 3 percent

was used as landfill or mine reclamation cover. 68

Fed. Reg. 68817 (Dec. 10, 2003). The EPA estimates

that sludge is applied to approximately 0.1% of

available agricultural land in the United States. (Pls’.

Ex. 11 [National Research Council Report: Biosolids

Applied to Land: Advancing Standards and Practices,

2002) at 311.)

App. 24

The EPA regulations of biosolids are codified at

40 C.F_R. § 503 and are known commonly as the “Part

503” regulations. Part 503 differentiates between

Class A and Class B sewage sludge depending on the

concentration of pathogens, disease causing micro-

organisms, remaining after treatment. See 40 C.F.R.

§ 503.32. While Class A sewage sludge is sufficiently

treated to essentially eliminate pathogens, Class B

sewage sludge is treated only to substantia!ly reduce

them. See id. For these reasons, the requirements for,

and restrictions placed on, land application of Class B

sewage sludge are more stringent than those imposed

on Class A sewage sludge. See id. For example, Part

503 requires controls on Class B sites such as

restrictions on human access to the farm fields and

setbacks from property lines that guarantee safety.

See id. § 503.32(b)(5). By contrast, Class A biosolids

have almost no restrictions on human handling, see

id. § 503.32(a), and are often bagged for retail sale to

home gardeners, (Pls’. Ex. 4 [Page P.I. Decl.] ¥ 11).

In addition to pathogens, the Part 503 rules also

limit the amounts of trace metals that can be found in

biosolids at the parts per million level. 40 C.F.R.

§ 503.13. Biosolids that are sufficiently low in metals

qualify as “Exceptional Quality” (“EQ”), and the EPA

allows wider use of such biosolids

B. LAND APPLICATION IN GENERAL

The collection and treatment of wastewater, and

the resulting generation of biosolids that must be

App. 25

recycled or disposed of, is a “constant, non-discretionary

governmental function.” (Defs’. Separate Statement of

Undisputed Material Facts in Opp. to Pls’. Mot.

(“DOSSUF”) { 10.) In other words, government agen-

cies cannot decide to stop producing biosolids and

instead must find ways to manage those that are

produced. (Pls’. Ex. 18 {Bahr P.I. Decl.] ¢ 11.) Govern-

ment agencies generally regard land application to be

the best way to manage the material. The parties

agree that land application constitutes a “beneficial

use” of biosolids, and indeed the EPA explains that it

adopted the term “biosolids” so as “to emphasize the

beneficial nature of this valuable, recyclable resource

(i.e., the use of the nutrients and organic matter in

biosolids as a fertilizer or soil condition).” (Minamide

Decl. 4 6, Ex. A [“A Guide to Biosolids Risk Assess-

ments for the EPA Part 503 Rule”].) The EPA has also

stated that “[bleneficial use of biosolids reclaims a

wastewater residual, converting it into a resource

that is recycled to land.” Ud. 47, Ex. B [“A Plain

English Guide to the EPA Part 503 Biosolids Rule”}.)

The EPA therefore promotes land application. (Defs’.

Ex. 13 [2000 EPA Audit Report: Biosolids Manage-

ment and Enforcement] at i1.)

At the same time, the EPA has consistently

recognized at least the potential that biosolids could

be dangerous. The preamble to the Part 503 regu-

lations, which were published in 1993, acknowledges

that they “may not regulate all pollutants in sewage

sludge that may be present in concentrations that

adversely affect public health and the environment.”

App. 26

58 E.R. 9248-01. The preamble also acknowledges

uncertainties in several important aspects of the risk

assessment on which the Part 503 regulations are

based, including uncertainties concerning the impacts

of land application of biosolids on human health,

plant toxicity, wildlife, and ground water. Id.

In light of these uncertainties, the EPA called for

further research. In 1996, the EPA asked the

National Academy of Sciences to study the safety and

practicality of using biosolids in human food crop

production. The resulting report concluded that land

application presented negligible risk to humans and

the environment and also provided many benefits.

(Pis’. Ex. 10 [1996 Report: Use of Reclaimed Water

and Sludge in Food Crop Production] at 305.) The

committee that authored the report also noted that

there had been no reported outbreaks of infectious

disease associated with a population’s exposure to

adequately treated biosolids. (Page Decl. 7 14.) Ac-

cording to the chair of the 1996 committee, this

observation remains accurate. (/d.)

Research on biosolids continued. In 2002, the

EPA asked the National Research Council (“NRC”) of

the National Academy of Sciences to evaluate the

Part 503 regulations by evaluating the technical

methods and approaches used to establish chemical

and pathogen standards for biosolids, focusing spe-

cifically on human health protection (and not eco-

logical or agricultural issues) The NRC found:

App. 27

There is no documented scientific evidence

that the Part 503 rule has failed to protect

public health. However, additional scientific

work is needed to reduce persistent uncer-

tainty about the potential for adverse human

health effects from exposure to biosolids.

There have been anecdotal allegations of

disease, and many scientific advances have

occurred since the Part 503 rule was promul-

gated. To assure the public and to protect pub-

lic health, there is a critical need to (1) up-

date the scientific basis of the rule to ensure

that the chemical and pathogen standards

are supported by current scientific data and

risk-assessment methods, (2) demonstrate

effective enforcement of the Part 5.5 rule,

and (3) validate the effectiveness of biosolids-

management practices.

(Defs’. Ex. 12 [2002 NRC Report: Biosolids ._ ‘ed to

Land] at 4.) With respect to health effects, the NRC

study stated that “|tloxic chemicals, infectious or-

ganisms, and endotoxins or cellular material may all

-esent in biosolids” and “[t|here are anecdotal

1 .wtvs attributing adverse health effects to biosolids

exposures, ranging from relatively mild irritant and

allergic reactions to severe and chronic health out-

comes.” (Ud. at 5.)

The NRC study further stated that although “a

causal association between biosolids exposures and

adverse health outcomes has not been documented

... [t\Jo date, epidemiological studies have not been

conducted on exposed populations, such as biosolids

App. 28

appliers, farmers who use biosolids on their fields,

and communities near land-application sites.” Ud. at

121-22.) Because of the anecdotal reports of adverse

health effects, the public concerns, and the lack of

epidemiological investigation, the study concluded

that EPA should conduct further research that ex-

amine exposure and potential health risks to worker

and residential populations. (/d.)

Further research has since occurred, but as yet

has uncovered nothing that would change the EPA’s

conclusion that land application in compliance with

the Part 503 regulations is safe. (Pls’. Ex. 7 [Pepper.

Suppl. P.I. Decl.} ¥ 7.)

C. THE PARTIES AND THEIR BIOSOLIDS OPERA-

TIONS

1. PLAINTIFFS

a. The City of Los Angeles Operation

Plaintiff City of Los Angeles (“the City”) has been

land applying biosolids in Kern County since 1994.

(DOSSUF 471.) The City collects wastewater gen-

erated by residential, commercial, and industrial

users in Los Angeles and surrounding communities,

and then treats this wastewater at its Hyperion,

Terminal Island, Glendale, and Tillman treatment

and water reclamation plants. The wastewater treat-

ment process generates solid residuals, which are

then further treated and eventually reconstituted

into biosolids at the City’s Hyperion and Terminal

Island plants. (Ud. { 2.)

App. 29

The City then sends its biosolids to a site known

as “Green Acres” in the unincorporated area of Kern

County, which it purchased in 1999 for $15 million.

(Pls’. Ex. 1 [Minamide PI. Decl.] 4 7.) The site is a

4,700-acre piece of Jand about 15 miles southwest of

Bakersfield and about 120 miles north of Los Angeles,

and is a functioning farm that mainly grows crops

used for animal feed. Ud. 77 7, 20, 23, 27; Johnson

Decl. ¥ 7.) The Green Acres biosolids program is

administered by Plaintiff Responsible Biosolids

Management, Inc. (“RBM”), which has been under

contract with the City since 1996. (Pls’. Ex. 2 [Stock-

ton PI. Decl.] ¢ 8.) RBM subcontracts some amount of

the hauling responsibilities to Plaintiff Sierra Trans-

port, Inc., which involves approximately 26 tractor

trailer loads of biosolids a day. (Pls’. Ex. 2 [Stockton

PI. Decl.|] at 14.) Plaintiff R & G Fanucchi, Inc.

performs the farming at Green Acres and has con-

tracted with Los Angeles since 2003 to land apply a

minimum of 200,000 tons of biosolids there each year.

(Pls’. Ex. 20 [Fannuchi [sic] PI. Decl.] ¥ 3.) All

biosolids applied to land at Green Acres are Class A

EQ. (Pls’. Ex. 1 [Minamide P.I. Decl.] ¥ 7.)

Green Acres has been described by one expert as

“one of the best monitored and professionally oper-

ated land application sites.” (Pls’. Ex. 4 [Gerba PI.

* Documents cited with the designation “P.I.” are declara-

tions originally submitted in support of Plaintiffs’ preliminary

injunction motion and which have been resubmitted in support

of the cross motions for summary judgment.

App. 30

Decl.}] 4 10.) In addition, the Green Acres site is

particularly well-suited for land application because

its soil contains multiple layers of silt known as

hardpan. The hardpan helps to protect groundwater,

which, beneath Green Acres, is extremely deep below

the surface. (Pls’. Ex. 2 [Stockton PI. Decl.) 4 32.)

Further, Green Acres is easily accessible by nearby

highways, including Interstate 5 and California

Highway 119. (Pls’. Ex. 2 [Stockton P.I. Decl.] { 32.)

Land use in the vicinity of Green Acres is pre-

dominantly agricultural, consisting of range land,

dairies, and irrigated row crops. Oil fields are alse

nearby, and there are no adjacent residences. (Pls’.

Ex. 3 [Johnson PI. Decl.] 9 8; Pls’. Ex. 5 [Gerba P 1.

Decl.] 4 10.) Experts have opined that the biosolids

operation at Green Acres presents no threat to the

environment that is discernable — at least based on

current science. (Pls’. Ex. 3 [Johnson P.I. Decl.] ¥ 18;

Pls’. Ex. 6 [Pepper P.I. Decl.] 7 8.)

Though remote, Green Acres impacts negatively

on certain activities. It emanates strong odors and

attracts an unusual amount of flies - conditions

which can be observed en route to and at the nearby

Buena Vista Aquatic Recreation Area, making water-

skiing there less enjoyable (Frantz Decl. 4J 17, 19.)°

* The declaration of Tom Frantz is offered by Intervenor

Association of Irritated Residents (“AIR”) in support of Kern’s

reply papers Plaintiffs move to strike the entire declaration

because it was offered for the first time in a reply. However,

while the Ninth Circuit has held that new evidence should not

be presented in a reply brief, it also allows district courts to

(Continued on following page)

App. 31

Green Acres also lies adjacent to the Kern Water

Bank, which sits atop an underground aquifer used to

store water for extraction during dry years. (Defs’. Ex.

41 [Parker Decl.) J 2, 8.) Particularly when water is

extracted during dry years, groundwater levels can

drop rapidly, potentially causing groundwater from

consider such evidence after giving the non-moving party an

opportunity to respond Provenz v. Miller, 102 F 3d 1478, 1483

(9th Cir. 1996) (citing Black v. TIC Inv. Corp., 900 F.2d 112, 116

(7th Cir 1990)) Here, the Court allowed Plaintiffs to respond to

the portions of Kern’s reply brief which cited the Frantz

declaration by filing a sur-reply. (Order of July 24, 2007 re:

Further Briefing.) Therefore, the Court shall consider the

portions of the Frantz Declaration that are otherwise admis-

sible, as are the portions cited above. However, the Court agrees

with Plaintiffs that significant portions of the Frantz Declara-

tion are inadmissible. Frantz does not explain how his status as

a farmer in Kern County qualifies him as an expert on the

effects of biosolids, and virtually all of his testimony is based not

on his personal knowledge, but rather his concerns and beliefs.

Such testimony is inadmissible on summary judgment. See Fed.

R. Civ. P. 56(e); Fed. R. Evid. 701, 702; Bank Melli Iran v.

Pahlavi, 58 F.3d 1406, 1412 (9th Cir. 1995) (declarations must

be on personal knowledge to carry weight at summary judyg-

ment). Moreover, to the extent AIR offers Frantz’s beliefs as

evidence of Measure E’s benign intent, the evidence does not

support this proposition because Frantz does not declare that he

voted for, drafted, or participated in the campaign for the Meas-

ure. Therefore, the factual assertions in paragraphs 4 through

16, 18, and 20 through 39 of the Frantz Declaration are inad-

missible, and Plaintiffs’ motion to strike them is GRANTED, as

is the motion to strike the Appendices to the Frantz Declaration,

which are scientific studies identifying potential risks from

biosolids, but are without foundation without Frantz’s testi-

mony. The motion to strike is DENIED, however, as to para-

graphs 17 and 19, cited above.

App. 32

under Green Acres to move into the aquifer. Ud. ¥ 9.)

The same is true for the Arvin-Edison aquifer, which

is twelve miles from Green Acres. (Defs’. Ex. 40

[Collup Decl. 4 12.) Notably, however, the record con-

tains no evidence that the groundwater beneath

Green Acres has been contaminated,‘ and indeed

results of groundwater monitoring and sampling data

from the region since 1975 indicate no significant

impacts to groundwater quality resulting from appli-

cation of biosolids at Green Acres. (Pls’. Ex. 3

[Johnson PI. Decl.] {7 8.)

b. Orange and Los Angeles Counties’

Operations

Plaintiffs Orange County Sanitation District

(“OCSD”) and County Sanitation District No. 2 of Los

Angeles County (“CSD No. 2”) operate wastewater

treatment plants in Orange County and Los Angeles

* Intervenor Kern County Water Agency proffers the testi-

mony of its general manager, James Beck, who opines that

sewage sludge poses a threat to adjacent groundwater banking

facilities. He bases this opinion on a University of California

study, which is not in the record, that found the crops grown on

sludged land did not “take up” all the salts introduced by the

sludge From this, Beck infers that to the extent sludge contains

contaminants, those contaminants could remain behind in the

soil and eventually make their way into the ground:vater. (Beck

Decl. 97 5-8.) Beck does not explain his qualifications as an

expert, however, and they are not facially apparent from his

position Therefore, Beck’s opinion testimony shall not be con-

sidered, and Plaintiffs’ motion to strike it is GRANTED. See

Fed. R. Civ. P. 56(e); Fed. R. Evid. 701, 702.

App. 33

County, respectively, which generate biosolids that

are recycled by Plaintiff Shaen Magan at sites in

Kern County known as Honey Bucket Farms and

Tule Ranch. (DOSSUF 44.) OCSD has been land

applying biosolids under contract at Tule Ranch since

1996. Ud. 9 5.) Similar to the arrangement used by

the City, OCSD collects wastewater generated by

residential, commercial, and industrial users within

its service area in Orange County, and then treats

this wastewater at two treatment plants, where a

portion of the wastewater solid residuals are col-

lected, treated further, and reconstituted into bio-

solids. The biosolids are then reused as a fertilizer

and a soil conditioner at Tule Ranch. (Jd. 7 6.) The

biosolids OCSD ships to Kern meet the Class A and

EQ standards. (Pls’. Ex. 24 [Ghirelli PI. Decl.] 4] 3,

6-7.)

CSD No 2 collects wastewater from 78 cities and

from the unincorporated areas of Los Angeles County

located outside the City of Los Angeles. CSD No. 2

treats this wastewater in its 11 treatment plants, and

then conveys the solid materials in the wastewater to

its Joint Water Pollution Control Plant, where these

materials are separated, given additional treatment,

and processed into biosolids for beneficial reuse.

(DOSSUF YJ 8.) CSD No. 2 sends its biosolids to

Honey Bucket Farms. (Ud. { 9.)

The record contains far less information about

Tule Ranch and Honeybucket [sic] Farms than it does

concerning Green Acres Nevertheless, no party has

contended there is any significant difference between

App. 34

the sites,’ and indeed, the arrangements are similar

in several important respects. At each Kern County

location, the City’s, OCSD’s, and CSD No. 2’s biosolids

are used as a nutrient supplement and soil amend-

ment on acreage used to grow animal feed crops. (/d.

9713, 6, 9.) If the sites in Kern County became

unavailable, Plaintiffs would be required to find alter-

native sites, most probably in Arizona (Pls’. Ex. 18

[Bahr P.I. Decl.] 4 9), which would significantly in-

crease transportation costs and impose greater en-

vironmental impact from vehicle emissions, both due

largely to the increased hauling distances. (Pls’. Ex.

19 [Stahl P.I. Decl.] 4 17; Pls’. Ex. 1 [Minimide [sic]

PI. Decl.) (Y 32-37.)

2. KERN’S BIOSOLIDS

Before the Kern County Board of Supervisors

adopted biosolids ordinances in 1999 and 2002, Kern

land applied its sewage sludge to an 1,100-acre farm

that it owns in the unincorporated areas of the

County. (Pls’. Response to Defs’ Separate Statement

(“PSGI”) { 25.) However, Kern does not currently

apply any of its own biosolids to Kern farmland, and

* However, the record includes a December 2006 report

authored after an unannounced inspection by an officer of the

California Regional Water Quality, which found that Tule

Ranch/Honeybucket [sic] Farms was not in violation of any

regulations, but rated the sites a 3 out [sic] 5 for overall facility

operations, which indicated they were merely “satisfactory”

(Defs’. Ex. 16 [Inspection Report] at 1, 2.)

App. 35

has not since at least 2004. Instead, the Kern

Sanitation Authority currently sends its biosolids to a

private contractor, San Joaquin Composting (“SJC”),

which processes them further and sells them as

compost to private firms. No in-county government

entity currently applies biosolids to land in Kern’s

jurisdiction. (See Defs’. Separate Statement in Reply

to Pls’. Response to Defs’. Separate Statement SGI

(“DRSGI”) 7{ 105-106.)°

D. REGULATION OF BIOSOLIDS IN KERN COUNTY

1. KERN’S REGULATION OF BIOSOLIDS PRIOR TO

MEASURE E

Kern has had two biosolids ordinances prior to

Measure E. First, Kern began regulating land appli-

cation of biosolids in 1998, when it required that the

biosolids meet the standards for Class A and Class B

biosolids. County Sanitation Dist. No. 2 of L.A.

County v. County of Kern, 127 Cal. App. 4th 1544,

1568 (Ct. App. 2005) (“County Sanitation”). Second, in

1999, Kern adopted an ordinance that phased out the

land application of Class B biosolids over a three-year

period. And after the three-year phase-out, the 1999

* Under Measure E, however, compost sold by SJC could

not be applied to land in Kern’s jurisdiction, and therefore Kern

staffers have expressed some concern that SJC would stop

accepting biosolids from Kern. (Pls’. Ex. 9 [McCutcheon Decl.]

Ex. A [Memo to Kern Board of Supervisors] at 298-99.) In any

event, Kern effectively relies on SJC to sell its biosolids to firms

in jurisdictions that will allow land application

App. 36

ordinance allowed only Class A EQ biosolids. 7d. at

1568 n.34; 40 C.F.R. 503.13(b\(3).

2. CITIES WITHIN KERN COUNTY

Because the incorporated areas of the County

necessarily lie beyond Kern’s jurisdiction, Cal. Const.

art. XI, § 7, Kern has never regulated the land ap-

plication of biosolids by the several cities in the

County that land apply biosolids on farm land within

city limits. These cities include Bakersfield, see

B.M.C. § 8.90.020(A) (allowing land application of

Class A EQ biosolids to city owned or operated farm-

land), Taft, Wasco, and Delano (Pls’. Ex. 2 [Stockton

PI. Decl.] ¥ 20; Stahl PI. Decl. 912 (stating that

incorporated areas in Kern County allow Class B

biosolids); see also Pls.’ Ex. 9 [McCutcheon P.I. Decl.},

Ex. A at 299 (opining that Measure E could force

Kern to find incorporated cities in the County to

accept its biosolids for land application)). Nearly 44%

of Kern County voters reside in Bakersfield, while

only 39% percent [sic] reside in unincorporated areas

(as of August 2, 2007). See http://elections.co.kern.

ca.us/Elections/districtcountstatistics.asp (last visited

Aug. 2, 2007).’

" The Court takes judicial notice of the Bakersfield Munici-

pal Code and the Kern County voter registration statistics Fed.

R. Evid. 201(b)-(d).

App. 37

3. MEASURE E

a. The Campaign

Dubbed the “Keep Kern Clean Ordinance of

2006,” Measure E was sponsored by Dean Florez, a

State Senator whose district encompasses portions of

Kern County, including portions of Bakersfield, and

who had previously introduced statewide legislation

that would have prohibited local governments from

exporting their sewage sludge to other counties un-

less there were no feasible local disposal option. S.B.

926 (Cal. 2005). Indeed, Measure E’s initiative cam-

paign made clear that the target was sludge from out-

of-county. It included such statements as:

“Measure E will stop L.A. from dumping

on Kern”

— “We will proclaim our independence from

polluting Southern California and Los

Angeles.”

— “[W]e’ve got a bully next door, flinging

garbage over his fence into our yard”

— “A lot of voters are just kind of tired of

being the dumping ground for everyone

else in the state.... Enough sludge,

enough sexual predators, enough prisons,

enough dairies. When does the county

stand up for itself?”

(Stockton P.I. Decl. 4 19; Pls. Ex. 19 [Editorial, Take

Your Sludge and Shove It!, Bakersfield Californian]

at B-8.) Moreover, the campaign website, http://www.

keepkernclean.com, includes graphics that state

App. 38

“Keep L.A. Sludge out of Kern County” and depict

stacked outhouses, with the top labeled “LA

COUNTY” and the bottom labeled “KERN COUNTY.”

It also contains a link to an online editorial that

states:

Until Kern County voters say no to sludge

and YES to Measure E, every man, woman

and child who lives here will have to put

up with Southern California dumping its

human and industrial waste on us.

Why? Because Kern County is the cheapest

place for Southern California to dump the

chemical and biological-laced goo that is

scraped from the bottoms of its sewer plants.

Measure E on the June ballot will prohibit

the land application of sludge in unin-

corporated arcas of Kern County. Southern

California will have to find a better, safer

way to dispose of its goo, which contains

heavy metals, industrial solvents, feces, med-

ical waste and pharmaceuticals.

http://www.bakersfield.com/135/story/48404.html.

Another link from the campaign website leads to

an article that states:

Fearful of deteriorating air and water quali-

ty, many folks in [Kern] county have about

had it with the daily parade of trucks dump-

ing sewage sludge onto their fields. On top of

that, they can’t stand what is viewed as Los

App. 39

Angeles’ imperial attitude, such as recent

reports that social workers in Los Angeles

County had given homeless people one-way

bus tickets to Bakersfield, the largest city in

Kern County.

In fact, many residents are simply sick of Los

Angeles.

“The valley is home to every one of the 11

prisons built since 1990,”.... “We have waste-

burners and tire-burners and proposals for

even more garbage. At some point, there’s

enough critical mass that people say: ‘No

more. That’s not our future.’”™

Not surprisingly, on June 6, 2006, the voters of

Kern County adopted Measure E with over 83% of the

vote. (Pls’. Response to Defs’. Separate Statement of

Undisputed Material Facts (““PRSSUF”) 4 1.)

b. The Ordinance

Measure E repealed Chapter 8.05 of the Ordinance

Code of Kern County and enacted a new Chapter 8.05,

which prohibits the land application of all biosolids in

the unincorporated areas of Kern County. K.C.O.C.

§§ 8.05.10, 8.050.40(A). The ordinance defines “land

apply” as “the spraying, spreading or other placement

* The Court considers these statements not for their truth,

but as evidence of the campaign strategy and thereby the voters’

intent in enacting Measure E.

App. 40

of Biosolids onto the land surface, the injection of

Biosolids below the land surface, or the incorporation

of Biosolids into the soil.” Jd. § 8.05.030(E).

Excluded from the general ban are _ biosolid

products purchased from retail outlets and used pri-

marily for residential purposes in limited quantities.

See id. § 8.05.030(B). Violations of the ordinance con-

stitute misdemeanors punishable by fines and im-

prisonment. /d. § 8.05.060.

The stated purpose and intent of Measure E are

as follows:

There are numerous serious unresolved is-

sues about the safety, environmental effect,

and propriety of land applying Biosolids or

sewage sludge, even when applied in accor-

dance with federal and state regulations.

Biosolids may contain heavy metals, patho-

genic organisms, chemical pollutants, and

synthetic organic compounds, which may

pose a risk to public health and the environ-

ment even if properly handled.... Land

spreading of biosolids .. may cause loss of

confidence in agricultural products from

Kern County.

Id. § 8.05.010.

Measure E is at issue here.

App. 41

IV.

DISCUSSION

A. THE Cross MOTIONS FOR SUMMARY JUDGMENT

1. THE LEGAL STANDARD

The Court assesses the motions under the usual

standard, which permits entry of judgment where

“the pleadings, depositions, answers to interroga-

tories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue

as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” Fed. R.

Civ. P. 56(c). Thus, the Court must first decide

whether there exist “any genuine factual issues that

properly can be resolved only by a finder of fact

because they may reasonably be resolved in favor of

either party.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 250 (1986). If the facts are not in dispute,

then the Court determines whether the moving party

is entitled to judgment as a matter of law. Further,

where summary judgment is not proper on the entire

claim, under Rule 56(d) the Court may grant partial

summary judgment on discrete elements of the claim.

Fed. RK. Civ. P. 56(d); Lies v. Farrell Lines, Inc., 641

F.2d 765, 769 (9th Cir. 1981)

“On cross motions for summary judgment, the

burdens faced by the opposing parties vary with the

burden of proof they will face at trial. When the

moving party will have the burden of proof at trial,

his showing must be sufficient for the court to hold

that no reasonable trier of fact could find other than

App. 42

for the moving party.” Seagate Tech., Inc. v. St. Paul

Fire & Marine Ins. Co., 11 F. Supp. 2d 1150, 1152

(N.D. Cal. 1998). On the other hand, “a moving party

who will not have the burden of proof at trial need

only point to the insufficiency of the other side’s

evidence, thereby shifting to the nonmoving party the

burden of raising genuine issues of fact by substantial

evidence.” Id.

2. THE EQUAL PROTECTION CLAUSE CLAIM

Plaintiffs claim that Measure E violates the

Equal Protection Clause, U.S. Const., amend. XIV,

§ 1, by treating biosolids differently than other ferti-

lizers, which they claim present equal if not greater

public health risks. The Court disagrees and con-

cludes Kern’s motion for summary adjudication of

this claim has merit.

a. Overview of Equal Protection Doc-

trine

Where, as here, the classification at issue does

not involve fundamental rights or suspect classes, it

comports with the Equal Protection Clause “if there is

a rational relationship between the disparity of treat-

ment and some legitimate governmental purpose.”

Heller v. Doe, 509 U.S. 312, 319-20 (1993). Under

rational basis analysis, a “classification ‘must be

upheld against equal protection challenge if there is

any reasonably conceivable state of facts that could

provide a rational basis for the classification.’ A Staite,

App. 43

moreover, has no obligation to produce evidence to

sustain the rationality of a statutory classification.”

Id. at 320 (citations omitted). Indeed, a “legislative

choice is not subject to courtroom fact-finding and

may be based on rational speculation unsupported by

evidence or empirical data.” Id. (citation omitted).

“The problems of government are practical ones and

may justify, if they do not require, rough accom-

modations — illogical, it may be, and unscientific.” Jd.

at 321 (quoting Metropolis Theatre Co. v. Chicago,

228 U.S. 61, 69-70 (1913)). Moreover,

[e]vils in the same field may be of different

dimensions and proportions, requiring dif-

ferent remedies. ... Or the reform may take

one step at a time, addressing itself to the

phase of the problem which seems most

acute to the legislative mind.... The pro-

hibition of the Equal Protection Clause goes

no further than the invidious discrimi-

nation.

EC.C. v. Beach Comme’ns, Inc., 508 U.S. 307, 316

(1993) (emphasis added). Therefore, under rational

basis review:

the Equal Protection Clause is satisfied so

long as there is a plausible policy reason for

the classification, the legislative facts on

which the classification is apparently based

rationally may have been considered to be

true by the governmental decisionmaker, and

the relationship of the classification to its

goal is not so attenuated as to render the

distinction arbitrary or irrational.

App. 44

Nordlinger v. Hahn, 505 U.S. 1, 11 (1992) (emphasis

added) (citations omitted)

Because the rational basis standard requires

great deference to legislative judgments, a plaintiff

who brings an equal protection claim attacking a

regulatory statute like the one at issue in this case

bears the burden to negate every conceivable basis

that might support the challenged statute. Beach

Comm’ns [sic], 508 U.S. at 315. A plaintiff may carry

this burden by demonstrating that the defendant’s

proffered purposes were merely pietextual. This may

be accomplished when confronted with a defense

motion for summary judgment by “creating a triable

issue of fact that either: (1) the proffered rational

basis was objectively false; or (2) the defendant

actually acted based on an improper motive.” Squaw

Valley Dev. Co. v. Goldberg, 375 F.3d 936, 946 (9th

Cir. 2004) (emphases added) (citations omitted); see

also, e.g., Armendariz v. Penman, 75 F.3d 1311, 1327

(9th Cir. 1996) (plaintiffs “raised a triable issue of fact

as to whether the [City’s] asserted rationale of

directing efforts to enforce the housing code at high-

crime areas was merely a pretext” for obtaining their

property at low prices). As the Court explains below,

nothing in this record suggests that the justifications

for the enactment of Measure E were pretextual.

App. 45

b. Analysis

t. Measure E’s Stated Purposes Were

Not Pretextual and Were Legiti-

mate

Here, Measure E recites a variety of legitimate

purposes, including a generalized concern for health

and safety, nuisance abatement from unpleasant

odors associated with biosolids, and protection of the

“confidence” in agricultural products from Kern

County. K.C.O.C. § 8.05.010. And contrary to Plain-

tiffs’ contention (Opp. at 11-13), no evidence indicates

that these stated purposes were pretextual even

though the campaign in favor of Measure E appears

to have played on regional rivalries and was clearly

targeted at Plaintiffs, as it involved a variety of

creative slogans referring to “L.A. sludge.” (See Stock-

ton PI. Decl. ¥ 19; Pls. Ex. 19 [Editorial, Take Your

Sludge and Shove It!, Bakersfield Californian] at B-

8.) Nothing in these statements indicates a bare

desire to harm Plaintiffs unrelated to the environ-

mental harms they were perceived to be causing and

which Kern could legitimat jy redress. Rather, the

statements merely reflect an indisputable fact — that

Southern California counties were the ones introduc-

ing the perceived pollutant to Kern’s jurisdiction. Put

simply, although the campaign indicated frustration

and even animosity towards Plaintiffs, these feelings

were directly related to Measure E’s stated environ-

mental purposes. Thus, though animus may have

been a significant element of the campaign, that fact

alone does not establish a violation of the Equal

App. 46

Protection Clause. As the Supreme Court has ex-

plained: “Although such biases [as negative attitudes

and fear] may often accompany irrational (and there-

fore unconstitutional) discrimination, their presence

alone does not a constitutional violation make.” Bd. of

Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 367

(2001).

In short, Measure E sought to address perceived

pollution, and Plaintiffs were perceived polluters.

Even the campaign references to sexual predators

and prisons were mere rhetoric to illustrate that, in

the view of the campaign, sludge was something

harmful to the County that was introduced by out-

siders. For that reason, the campaign rhetoric does

not reasonably lead to the inference that Measure E’s

stated environmental purpose was a pretext to con-

ceal some other, unconstitutional, objective.

it. Measure E Rationally Furthers Its

Stated Purposes

If one considers the scope and impact of Meas-

ure E apart from the campaign rhetoric, one can

readily determine that it is rationally related to its

purposes. Measure E’s drafters and supporters could

rationally speculate that land application of biosolids

would present unknown future health risks that

would be avoided by banning the practice. They also

could properly be concerned that the reputation of

Kern’s agricultural products would be adversely af-

fected if the County became known as a dumping

App. 47

ground for the refuse of Southern California resi-

dents. Indeed, a 1996 NRC study states that adverse

public perception of the use of sewage sludge in food

crop production is a serious problem and that “public

perception does not necessarily depend on objective,

scientific evidence.” (Defs’. Ex. 20 at 158-59.) The

1996 NRC study also stated:

(The major business risk for farmers and

food processors ... is stigmatization of the

product and its source. This leads to loss of

customer confidence, choice of competing

products, and loss of market share on re-

gional and even national scales. Even if con-

tamination or injury causation is unproved,

these consequences may occur because wide-

spread media coverage, speculations, or alle-

gations may be enough to make the retailers

and consumers reject the product.

(id. at 171.)

The NRC study also concluded that “the risks

from negative public perception could be substantial.

Negative public perception of food crops produced us-

ing treated wastewater or sludge could have detri-

mental impacts on consumer demand and the profit

and survival of firms.” (Jd. at 160.)

* Kern also contends that major food processors such as

Heinz U.S.A. and Del Monte do not accept agricultural products

grown on soil treated with sewage sludge. Its evidence in sup-

port of this purported fact, however, is correspondence to a para-

legal that works for defense counsel. Therefore, the evidence

(Continued on following page)

App. 48

Plaintiffs object to the above evidence, contend-

ing that because their biosolids are applied on

acreage used only to grow animal feed, concerns re-

lated to food for human consumption are irrelevant.

The objection misses the point. Evidence concerning

public perception regarding food products confirms

(as if it needed confirming) that factors other than

scientific realities frequently affect the public’s beliefs

about its food supply. Since perception can become

reality for those involved in agri-business, Kern could

rationally conclude that a complete ban on the land

application of biosolids with [sic] its jurisdiction

rationally furthers Kern’s agricultural reputation.

Thus, even if Plaintiffs themselves do not grow food

for human consumption, that fact alone would not

render Measure E irrational as applied to them.

Rather than adopting a potentially cumbersome pro-

gram to ensure that no crops grown with biosolids are

used for human consumption, Kern may simply have

preferred not to incur the risks of being associated

with biosolids at all. The choice to enact a blanket

ban was not irrational.”

must be disregarded as without foundation and inadmissible

hearsay.

* Plaintiffs purport to controvert the claimed purpose of

guarding Kern’s agricultural reputation with a report from the

California State Water Resources Control Board that stated

“[Wlith respect to the use of biosolids in the production of food

crops [California farmers] are at no marketing disadvantage

with respect to any other agricultural region in the U S or the

world.” (Pls’. Ex. 12 [State Water Resources Control Board,

(Continued on following page)

App. 49

Finally, the record also includes evidence that

some problems, including the potential for offensive

odors, cannot be eliminated even at the “best run”

biosolid disposal operations. (Defs’. Ex. 19 [1999 EPA

Report: Biosolids Generation, Use, and Disposal in

the United States] at 41.) This confirms that Meas-

ure E rationally furthered its stated purpose of

avoiding nuisances associated with biosolids.

For these reasons, Measure E comports with the

Equal Protection Clause, notwithstanding a variety of

evidence in the record that biosolids present only

negligible risks to human health when applied in

conformity with federal regulations. As the Supreme

Court has emphasized, a “legislative choice is not

subject to courtroom fact-finding and may be based

on rational speculation unsupported by evidence or

Final Statewide Program EIK Covering General Waste Dis-

charge Requirements for Biosolids Land Application (July 2004)}

at 2-81.) The reason this was so, however, was simply that “No

state within the U.S. bans the application of biosolids to food

crops. Further, the land application of biosolids to agricultural

lands producing food crops is a common practice in many areas

of the world that also import food crops to the U.S.” Ud.) There-

fore, far from concluding that the public was unconcerned with

biosolids, the State Board merely concluded that with most

sources of food coming from regions that used biosolids, all

growers were essentially on a level playing field when viewed in

the abstract. The report made no findings with respect to

regions that experienced particularly high concentrations of

biosolid application, or that became notorious for the practice.

Therefore, the report does not negate the rationality of the belief

that Kern agricultural products could suffer if the County

continued to be used for biosolids.

App. 50

empirical data.” Heller, 509 U.S. at 320 (citation omit-

ted). This means that, for Equal Protection purposes,

Kern voters were not obligated to make a decision

based on cutting edge research: Measure E comports

with the Equal Protection Clause unless it was

irrational, and on this record, it was not.

Therefore, Kern’s motion for summary judgment

on the Equal Protection claim is GRANTED.

3. THE COMMERCE CLAUSE CLAIM

Plaintiffs’ Commerce Clause claim fares better,

largely because they have carried their burden to

demonstrate Measure E’s effect of discriminating

against interstate commerce, thereby subjecting the

ordinance to strict scrutiny which it cannot survive.

a. Overview of the Dormant Commerce

Clause

The Commerce Clause, U.S. Const. art. I, § 8,

cl. 3, affirmatively grants Congress plenary power to

regulate commerce and limits the power of states and

local government to adopt ordinances that interfere

with interstate commerce, even “[wlhen legislating in

areas of legitimate local concern, such as environmen-

tal protection and resource conservation.” Minnesota

v. Clover Leaf Creamery Co., 449 U.S. 456, 471 (1981).

Because Congress has absolute authority in the regu-

lation of commerce, it may legislatively exempt local

ordinances from the Commerce Clause’s restrictions.

App. 51

“Where state or local government action is specifically

authorized by Congress, it is not subject to the

Commerce Clause even if it interferes with interstate

commerce.” White v. Mass. Council of Constr. Employ-

ers, Inc., 460 U.S. 204, 213 (1983) (quoting S. Pac. Co.

v. Arizona, 325 U.S. 761, 769 (1945)). However,

Supreme Court precedent teaches that such authori-

zation must be clearly expressed by Congress, and in

the absence of such a clear expression courts should

not assume Congress has authorized a discriminatory

or burdensome local regulation. Hillside Dairy Inc. v.

Lyons, 539 U.S. 59, 66 (2003).

Where the Commerce Clause does apply, the level

of scrutiny depends on whether the ordinance at issue

“discriminates” against interstate commerce. “|Lljaws

that discriminate against interstate commerce face ‘a

virtually per se rule of invalidity.” Granholm uv.

Heald, 544 U.S. 460, 476 (2005) (quoting Philadel-

phia v. New Jersey, 437 U.S. 617, 624 (1978)).

Because of this “virtually per se rule,” precedent dic-

tates that discriminatory statutes should be subjected

to strict scrutiny and should be upheld “only if the

government can demonstrate both that the law serves

a legitimate local purpose and that this purpose could

not be served as well by available nondiscriminatory

means.” Maine v. Taylor, 477 U.S. 131, 188 (1986).

““(D]jiscrimination’ simply means differential treat-

ment of in-state and out-of-state economic interests

that benefits the former and burdens the latter.” Or

Waste Sys., Inc. v. Or. Dep't of Envtl. Quality, 511 U.S.

93, 99 (1994).

App. 52

By contrast, laws that do not discriminate

against interstate commerce face a more deferential

standard. Under the so-called “Pike test,” “non-

discriminatory regulations that have only incidental

effects on interstate commerce are valid unless ‘the

burden imposed on such commerce is clearly exces-

sive in relation to the putative local benefits.’” Id.

(quoting Pike v. Bruce Church, Inc., 397 U.S. 137, 142

(1970)).

b. Application

t. Btosolids Are Articles in Inter-

state Commerce

A local government’s regulation of waste and

waste disposal constitutes “regulation of interstate

commerce” where the regulation’s economic effects

are interstate in reach. E.g., C & A Carbone, Inc. v.

Town of Clarkstown, N.Y., 511 U.S. 383, 389 (1994);

see also Conservation Force, Inc. v. Manning, 301 F.3d

985, 993 (9th Cir. 2002) (“To determine whether the

dormant Commerce Clause is applicable, we ask ...

whether the activity regulated ... has a ‘substantial

effect? on interstate commerce such that Congress

could regulate the activity.”). Here, the record reflects

that disposal sites for biosolids are relatively scarce

(Pls’. Ex. 19 [Stah] P.I. Decl.] J 16), and that elimina-

tion of the sites in Kern County, California will likely

lead to diversion of the material to Arizona (id. 4 16;

Pls’. Ex. 1 [Minimide [sic] P.I. Decl.] 9 9). This suffices

to bring Measure E within the ambit of the Commerce

Clause. See, e.g.,C & A Carbone, 511 US. at 389.

App. 53

Although C & A Carbone involved a restriction

that barred out-of-state waste haulers from bringing

refuse across state lines, Kern’s status as a county

and not a state does not render the Commerce Clause

inapplicable. “[A] State (or one of its political sub-

divisions) may not avoid the strictures of the Com-

merce Clause by curtailing the movement of articles

of commerce through subdivisions of the State, rather

than through the State itself.” Fort Gratiot Sanitary

Landfill, Inc. v. Mich. Dep’t of Natural Res., 504 U.S.

353, 361 (1992); see also Dean Milk Co. v. Madison,

340 U.S. 349, 354-56 (1951) (invalidating an ordi-

nance that barred certain milk producers from selling

milk within city limits); BFI Med. Waste Sys. v.

Whatcom County, 983 F.2d 911, 913 (9th Cir. 1993)

(citing Fort Gratiot for the proposition that “out-of-

county waste bans are per se unconstitutional”). In-

deed, discrimination against out-of-county entities

would, a fortiori, discriminate against out-of-state

entities and therefore be subject to the virtual per se

rule of invalidity.

uz. Congress Has Not Exempted

Measure E From Commerce

Clause Limitations

Kern argues vigorously that Measure E is im-

mune from attack under the Commerce Clause

because Congress has specifically authorized local

regulations of biosolids. (Defs’. Mot. at 2-9; Defs’.

Reply at 1-4.) In support, Kern cites a provision in the

Clean Water Act, which provides:

App. 54

The determination of the manner of disposal

or use of sludge is a local determination,

except that it shall be unlawful for any

person to dispose of sludge from a publicly

owned treatment works or any other treat-

ment works treating domestic sewage for

any use for which regulations have been

established pursuant to subsection (d) of this

section, except in accordance with such

regulations.

33 U.S.C. § 1345(e).

The legislation, properly construed and under-

stood, provides no support of Kern’s position. As the

Court has explained twice previously, Kern I, 2006

WL 3073172, at *7; Kern IJ, 462 F. Supp. 2d at 1113,

section 1345(e), though contemplating local legisla-

tion regarding sludge disposal, contains no language

remotely approaching authorization of local legisla-

tion that discriminates against or unduly burdens

interstate commerce. As already noted, congressional

approval for local regulation in general does not

render the Commerce Clause inapplicable. See South-

Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82,

91-92 (1984). Rather, the question is whether Con-

gress has made unmistakably clear its intent to

“remove federal constitutional constraints” and there-

by “sustain state legislation from attack under the

Commerce Clause.” Sporhase v. Nebraska, ex rel.

Douglas, 458 U.S. 941, 959-60 (1982). As the Court in

Maine v. Taylor explained:

App. 55

[Blecause of the important role the Com-

merce Clause plays in protecting the free

flow of interstate trade, this Court has

exempted state statutes from the implied

limitations of the Clause only when the

congressional direction to do so has been

unmistakably clear.... Maine identifies

nothing ... that suggests Congress wished to

validate state laws that would be unconsti-

tutional without federal approval.

477 U.S. at 138-39 (citation and internal quotation

marks omitted); see also Hillside Dairy, 539 U.S. at

68 (“Because § 144 does not clearly express an intent

to insulate California’s pricing and pooling laws from

a Commerce Clause challenge, the Court of Appeals

erred in relying on § 144 to dismiss the challenge.”);

Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 155

n.21 (1982) (holding that Congress had “convincingly”

though not “expressly” “announced that Indian taxes

do not threaten its latent power to regulate interstate

commerce”). Because Kern cites no such expression

of congressional intent here, the Commerce Clause

analysis applies to the Court’s consideration of

Measure E."

11

Kern unpersuasively argues that Measure E is not sub-

ject to such analysis, citing Western & Southern Life Insurance

Co. v. State Bd. of Equalization, 451 U.S. 648, 653-54 (1981) for

the proposition that congressional approval or authorization of a

local regulation in general suffices to immunize an ordinance

from a Commerce Clause attack. But that case does not support

Kern’s position either, as the Court there concluded Congress

(Continued on following page)

had authorized discriminatory state insurance regulations in

large part because of a statutory provision stating:

Congress declares that the continued regulation and

taxation by the several States of the business of insur-

ance is in the public interest, and that silence on

the part of the Congress shali not be construed to

impose any barrier to the regulation or taxation of

such business by the several States.

Id. at 653 (citing 15 U.S.C. § 1011) (emphasis added). Morcover,

the Court also noted that Congress had enacted the legislation

in question — the McCarran-Ferguson Act — in the wake of a

Commerce Clause case that overruled prior jurisprudence to

hold that insurance was “commerce” and thus subject to Com-

merce Clause analysis in the first instance. Jd. at 654-55.

Therefore, contrary to Kern’s suggestion, Western & Southern

Life Insurance is merely another example of the Supreme Court

demanding convincing evidence of Congressional intent to allow

local legislation that would otherwise transgress the Commerce

Clause before it will deem the Commerce Clause analysis inap-

plicable. To the same effect, and unhelpful to Kern for similar

reasons, is Northeast Bancorp, Inc., v. Bd. of Governors, 472 U.S.

159, 174 (1985), which also inquired into Congress’ intent to

allow discriminatory state regulations. Even less helpful is

Oxygenated Fuels Ass'n, Inc. v. Davis, 331 F.3d 665, 666 (9th

Cir. 2003), which merely held that a California regulation

banning MTBE in gasoline was not preempted by the Clean Air

Act and in no way involved Commerce Clause analysis. Kern is

therefore left only with the district court’s opinion in Oxygenated

Fuels Ass’n, Inc v Davis, 163 F. Supp. 2d 1182, 1188 (E.D. Cal.

2001), which, though reaching a result consistent with the posi-

tion Kern advocates, provided no analysis that addressed the

Supreme Court authority cited above, and thus is unpersuasive.

App. 57

tit. Measure E’s Effect Is To Discrim-

inate Against Interstate Commerce,

And It Cannot Survive Strict Scru-

tiny

Having concluded that Congress has not ex-

empted Measure E from Commerce Clause analysis,

the Court begins by noting that Measure E does not

discriminate on its face; by its terms, it bans all

biosolids regardless of their origin. See K.C.O.C.

§§ 8.04.040(A), 8.05.050(A), 8.05.060. However, even

absent facial discrimination, a court may find that a

state law violates the Commerce Clause on proof

either of discriminatory effect, or of discriminatory

purpose. Minnesota, 449 U.S. at 741 n.15. Based

on that proposition, Plaintiffs contend that, despite

Measure E’s facial neutrality, it nonetheless trans-

gresses the Commerce Clause because its underlying

purpose and effect is to discriminate against biosolids

from the City and other Southern California commu-

nities. (Pls’. Opp. at 6.) The Court previously found

Plaintiffs were likely to prevail with this position,

Kern IT, 462 F. Supp. 2d at 1113-15, and, upon careful

consideration, now holds that they have done so.

Even though for Equal Protection purposes the

antagonism toward Los Angeles in particular and

Southern California in general fails to negate a legiti-

mate environmental concern about the land applica-

tion of biosolids within Kern County, Commerce

Clause jurisprudence focuses on a different set of

concerns — the discriminatory impact of the legisla-

tion on commerce or articles in commerce. In that

App. 58

regard, one cannot ignore the campaign rhetoric,

which included such statements as “Measure E will

stop L.A. from dumping on Kern” and “[Wle’ve got a

bully next door, flinging garbage over his fence into

our yard.” While these sorts of statements do not

suggest that Measure E was enacted for the purpose

of protecting local industry at the expense of outside

businesses, they amply demonstrate that the initia-

tive was not so subtly animated by a specific desire to

exclude Plaintiffs’ biosolids from the County.’ And

’ Kern cites California law for the proposition that the

campaign rhetoric here is irrelevant to the voters’ intent because

it was not part of the official ballot materials. (Defs’. Rebuttal at

4-5.) However, Kern’s California authorities are distinguishable

because they concern reluctance to resolve statutory ambigu-

ities by looking to materials not before the voters. See In re First

Trust Deed & Investment, Inc., 253 F.3d 520, 530 (9th Cir. 2001)

(under California rule of statutory construction, courts may not

“consider the motives or understandings of an _ individual

legislator even if he or she authored the statute”), Horwich v.

Superior Court, 21 Cal. 4th 272, 277 n.4 (1999) (declining to

resolve ambiguity in Proposition 213 by looking to “matters

[that] were not directly presented to the voters”); Robert L. v.

Superior Court, 30 Cal. 4th 894, 904-05 (2003) (same, citing

Horwich). Here, the campaign rhetoric was assuredly before the

voters (as it was disseminated on the internet on the campaign

website and reflected on the websites of mainstream media), and

is relevant here not to resolve an ambiguity, but to assess voters’

potentially wrongful intent — a use adopted by controlling

Supreme Court authority which, contrary to Kern’s suggestion,

cannot be limited to the Equal Protection context. Washington v.

Seattle Sch. Dist. No. 1, 458 U.S. 457, 471 (1982). Indeed, at

least one federal court of appeals has, in a dormant Commerce

Clause case, been willing to assess the intent of a local ordi-

nance by looking directly to the intent of its drafters. S.D. Farm

(Continued on following page)

App. 59

while excluding Plaintiffs’ biosolids from disposal in

the County, Measure E has virtually no impact on in-

county biosolid programs, as Kern’s biosolids could

continue to be shipped to SJC, and cities in the

County were permitted to continue to allow land

application within their corporation limits.

In these circumstances, the record compels only

one conclusion: Measure E’s drafters and proponents,

though perhaps genuinely motivated by concern

about the environmental impact of biosolids, reacted

to this problem by banning land application in areas

uced by out-of-county entities, while tolerating it in

areas used by in-county entities. This resulting

disparity was not merely an incidental effect — rather,

it was certainly intended, as evidenced by a campaign

with the theme of independence from Southern

California bullies. Having reached this conclusion, it

follows that Measure E must be subjected to strict

scrutiny not because of an illegitimate purpose,

Minnesota, 449 U.S. at 463, 470 nn.7, 15 (presence of

genuine environmental purpose precludes application

of strict scrutiny on purpose grounds), but rather

because the legislation was intended to and does have

a discriminatory effect. See Spoklie v. Montana, 411

F.3d 1051, 1060 (9th Cir. 2005) (noting that the rule

of strict scrutiny for Commerce Clause claims applies

“where legislation results in ‘patent discrimination

Bureau, Inc. v. Hazeltine, 340 F.3d 583, 596 (8th Cir, 2003). The

Court finds this approach persuasive here as well.

App. 60

against interstate trade.’” (quoting Philadelphia, 437

U.S. at 624)). Although the circumstances presented

in this case are out of line with the more usual

pattern of discrimination in Commerce Clause juris-

prudence, Measure E must be tested under the strict

scrutiny standard because the legislation plainly

discriminates, and was intended to discriminate,

against out-of-county sludge.

To circumvent this analysis, Kern argues that

Measure E regulates entirely even handedly within

the unincorporated areas of the County. (Defs’. Reply

at 7-8.) The argument ignores reality: out-of-county

interests are the only ones directly applying biosolids

to land in the unincorporated areas, and therefore

they will be the only ones to incur the significant

transaction costs associated with the termination and

relocation of their Kern County operations. (See Pls’.

Ex. 18 [Bahr PI. Decl.] ¥ 11 (noting costs required to

initiate a new biosolids program).) No city within the

County applies biosolids to land in the unincorpo-

rated areas, and Kern itself sends its biosolids to

SJC. (DRSGI 74 105-106.) Although the application of

the biosolids ban to SJC’s compost presents some

threat to Kern’s current disposal method (Pls’. Ex. 9

[McCutcheon Decl.! Ex. A [Memo to Kern Board of

Supervisors] at 298-99), the SJC arrangement insu-

lates Kern in an importan' way from Measure E’s

burdens, as Kern can continue sending its material

there so long as SJC finds enough buyers in neigh-

boring jurisdictions. As a result, even confined to the

unincorporated areas of the County, Measure E’s

App. 61

burdens fall significantly heavier on Plaintiffs than

they do on Kern.

Second, and more importantly, the Court cannot

ignore the fact that incorporated cities within Kern

County continue to allow land application of biosolids,

in some cases of lesser quality that Plaintiffs’. This,

coupled with the overwhelming evidence of intent to

exclude out-of-county sludge from the County as a

whole, compels the conclusion that Measure E has

the practical effect of allowing Kern County munici-

palities to continue applying their biosolids within

the County’s borders, but preventing out-of-county

jurisdictions from doing so. It may not be appropriate

to consider the extra-jurisdictional effects of legisla-

tion in every case, but ignoring the conduct of Kern

County municipalities would impose an artificiality

on the analysis that would undermine the very

purpose of long-standing Commerce Clause jurispru-

dence. This is especially true in this case where the

record reflects that nearly 61% of Kern County’s

registered voters live in incorporated areas of the

County. This means that over three-fifths of the

decision-makers tolerate local disposition of locally

generated biosolids, but have prevented out-of-county

recyclers from engaging in precisely the same activity

by banning the operation of any biosolid recycling

facilities in the unincorporated areas of the County.

This constitutes a discriminatory effect far too con-

spicuous to hide behind the jurisdictional limits of

Kern itself. Cf, e.g., Healy v. Beer Inst., 491 U.S. 324,

336 (1989) (holding that courts must consider the

App. 62

practical effect of the law, including how it interacts

with the laws of other jurisdictions, in considering the

Commerce Clause analysis); Valley Bank of Nev. v.

Plus Sys., Inc., 914 F.2d 1186, 1190 (9th Cir. 1990)

(same, citing Healy). And as the Supreme Court noted

in United Haulers Ass’n, Inc. v. Oneida-Herkimer

Solid Waste Authority.

Our dormant Commerce Clause cases often

find discrimination when a State shifts the

costs of regulation to other States, because

when the burden of state regulation falls on

interests outside the state, it is unlikely to be

alleviated by the operation of those political

restraints normally exerted when interests

within the state are affected.

127 S. Ct. 1786, 1797 (2007); see also Maine, 477 U.S.

at 149 n.19 (explaining that the Commerce Clause

does not allow locales to further legitimate environ-

mental purposes by forcing outsiders to “bear the

brunt of the conservation program for no apparent

reason other than that they lived and voted in other”

jurisdictions). That is what happened here. Measure E

shifts the costs resulting from its regulation almost

entirely to out-of-county interests through an initia-

tive process that was unchecked by the operation of

the normal political restraints, such as an organized

local opposition. The Supreme Court teaches that this

sort of discriminatory legislation transgresses the

dormant Commerce Clause absent the most per-

suasive local justification.

App. 63

Kern may protest that, even viewed from the

perspective of the County as a geographical region

and not simply as a political entity, Measure E has no

discriminatory effect because Plaintiffs would be free

to land-apply biosolids in incorporated areas of the

County. While tempting, this position would require

the Court to ignore undisputed evidence in the record.

First, it is undisputed that Measure E’s likely effect is

to cause Plaintiffs to ship their biosolids to Arizona.

While the record does not foreclose the possibility

that Plaintiffs could simply use land in their own

jurisdictions, their undisputed willingness to accept

the greater distance to Arizona leads only to the

inference that they could not simply resort to the

incorporated areas of the County.

Moreover, Kern itself submitted a staff report

opining that, should Measure E cause SJC to stop

accepting Kern biosolids, Kern could be in the posi-

tion of having to “[fJind an incorporated city in the

County that would accept [Kern] generated biosolids.”

(Pls’. Ex. 9 [McCutcheon Decl.] Ex. A [Memo to Kern

Board of Supervisors] at 299.) The expression of this

concern suggests that the cities themselves exercise

some de facto control over imports, which, in com-

bination with the anti-Los Angeles rhetoric, suggests

they would not accept Plaintiffs’ biosolids, thereby

leading to a County-wide import ban in practical

effect.

But even more significant evidence of Measure E’s

intended effect comes from the campaign materials:

Measure E would assertedly kick Los Angeles sludge

App. 64

out of Kern County. Indeed, it would be strange to

think that residents of the County would tolerate Los

Angeles “dumping” on its more densely populated

incorporated areas when they objected so strongly to

the affront to their unincorporated areas. Therefore,

the Court must take the rhetoric at face value. Given

the overwhelming evidence that excluding “L.A.

sludge” from the County was the campaign’s intent,

the only reasonable inference is that Measure E would

force Plaintiffs’ operations out of the County entirely

and not merely divert them to incorporated areas.

By contrast, no evidence indicates Plaintiffs could

use incorporated areas for their biosolids programs.

Thus, the Court finds that Measure E [sic] Plaintiffs

have established Measure E’s discriminatory effect as

a matter of law, and therefore that Measure E must

satisfy strict scrutiny. F.g., United Haulers, 127 S. Ct.

at 1793.

Strict scrutiny means Measure E violates the

Commerce Clause unless Kern can demonstrate it

was the only available means to address its legiti-

mate environmental concerns. Jd. Kern makes no

attempt to do so, and on this record, alternatives

certainly exist. Rather than a complete ban on bio-

solids, Kern could simply have regulated the volume,

location, and quality of the biosolids it allowed to be

land applied. Kern offers no argument why such

methods would have been infeasible or inadequate to

address its concerns, and therefore it cannot carry its

burden to defend Measure E against strict scrutiny.

App. 65

Accordingly, the Court holds Measure E violates

the Commerce Clause, and therefore Plaintiff’s [sic]

motion for summary judgment on this claim is

GRANTED and Kern’s is DENIED.

4. THe CIWMA PREEMPTION CLAIM

Plaintiffs also claim that Measure E is pre-

empted by the CIWMA. Kern defends against this

theory by contending Plaintiffs lack standing to raise

it, and that even if they had standing, CIWMA does

not preempt Measure E. The Court disagrees and

concludes Plaintiffs are entitled to summary adjudi-

cation on this cause of action.

a. Standing

Parties invoking federal courts’ jurisdiction bear

the burden to demonstrate a “case or controversy”

within the meaning of Article III of the United States

Constitution. E.g., City of Los Angeles v. Lyons, 461

U.S. 95, 101 (1983). Standing is an essential com-

ponent of the case or controversy requirement, Lujan

v. Defenders of Wildlife, 504 U.S. 555, 560 (1992), is

required with respect to each form of relief sought,

Lewis v. Casey, 518 U.S. 343, 358-59 n.6 (1996), and

is a hurdle that, contrary to Defendants’ suggestion,

Plaintiffs easily clear here.

The core constitutional components of standing

are (1) an injury in fact (2) that is fairly traceable to

the action complained of (3) such that the relief

App. 66

sought would likely redress the injury. Lujan, 504

U.S. at 560-61; see also Lyons, 461 U.S. at 107 & n.8

(plaintiff seeking injunctive relief must establish like-

lihood of future injury). Kern erroneously contends

that Plaintiffs fail to make this showing. It is

undisputed that the government Plaintiffs currently

(and have since the mid 1990s) applied their biosolids

to land within Kern County. Their ability to do so in

the future would be effectively eliminated should

Measure E be enforced, because the private Plaintiffs

which administer their biosolids programs would face

fines and imprisonment for violating the ordinance.

See K.C.O.C. § 8.05.60. Moreover, Kern has made no

suggestion that it does not intend to enforce the

overwhelmingly popular ordinance. As a result, each

Plaintiff has shown the risk of an imminent injury,

fairly traceable to enforcement of Measure E, that

would be redressed (i.e., prevented) by an order

declaring the ordinance invalid and enjoining its

enforcement. Cf. Kern II, 462 F. Supp. 2d at 1119-21

(concluding that each Plaintiff established irrepara-

ble harm for purposes of the preliminary injunction

analysis). This showing far exceeds Article III’s

minimum requirement, as the presence in a suit of

even one party with standing is sufficient to make a

claim justiciable. Dep’t of Commerce v. U.S. House of

Representatives, 525 U.S. 316, 330 (1999).

Kern also argues that, as to their CIWMA claim,

Plaintiffs fail to meet the prudential standing re-

quirement that their complaint fall within the “zone

of interests to be protected or regulated by the statute

App. 67

or constitutional guarantee in question.” E.g., Valley

Forge Christian Coll. v. Ams. United for Separation of

Church & State, Inc., 454 U.S. 464, 474-75 (1982).

Kern’s contention rests on the argument that Plain-

tiffs have not shown that their biosolid programs in

Kern County are included in their or their host

jurisdictions’ integrated waste management plans,

which are documents mandated by the CIWMA. See

Cal. Pub. Res. Code §§ 40900, 41000, 41300. Accord-

ing to Kern, this means that Plaintiffs have not

established that their biosolids programs fall within

CIWMA’s coverage, and thus that Measure E does not

invade any interest of Plaintiffs that is protected by

the CIWMA. (Defs’. Opp. at 6.)"”

Again, however, Kern’s argument misses the

mark. Although Plaintiffs take the bait and respond

by insisting that the CIWMA does cover their

13

Kern also suggests that the Plaintiffs’ purported failure

to create proper integrated waste management plans means

that Plaintiffs cannot demonstrate an injury in fact. (Defs’. Opp.

at 6.) This argument is perplexing, without authority, and ap-

pears merely to conflate the injury in fact inquiry with the

prudential “zone of interest” inquiry. Kern also attempts to

inject this argument into the substantive preemption analysis

(see Defs’. Mot. at 21-22), as it contends. “Since Plaintiffs have

elected not to bring their land application of biosolids in Kern

County within the [CIWMA|’s purview, the Act does not preempt

or conflict with Measure E.” Ud. at 22.) To state this argument is

essentially to refute it: the contention fails because once Plain-

tiffs have established standing, the CIWMA claim is essentially

a straightforward exercise in statutory interpretation, and in no

way turns on the particular conduct in which Plaintiffs engage.

App. 68

conduct, the proper inquiry is not whether Plaintiffs’

claims are within the zone of interest of the CIWMA,

because they bring no claim arising under that stat-

ute itself. Rather, their CIWMA preemption claims

invoke the California Constitution, which pro-

vides: “A county or city may make and enforce within

its limits all local, police, sanitary, and other

ordinances and regulations not in conflict with gen-

eral laws.” Cal. Const., art. XI, § 7 (emphasis added).™

As discussed in greater detail below, this constitu-

tional provision operates in a manner analogous to

the federal constitution’s Supremacy Clause, U.S.

Const. art. VI, cl. 2, preempting local legislation that

either expressly or impliedly conflicts with state

statutes. Compare, e.g., Morehart v. County of Santa

Barbara, 7 Cal. 4th 725, 817-18 (2004) (listing ways

that state Jaw can preempt local ordinances), with

Mich. Canners & Freezers Ass’n, Inc. v. Agric. Mktg.

& Bargaining Bd., 467 U.S. 461, 469 (1984) (listing

ways that federal law can preempt state law). In part,

by restricting the power of cities and counties, Article

‘* At oral argument, counsel for Kern protested that Plain-

tiffs’ Complaint relied only on the CIWMA and did not mention

the California Constitution, and therefore that the relevant zone

of interest is CIWMA’s. Kern reads the Complaint too narrowly.

Plaintiffs clearly alleged that Measure E “is preempted because

it conflicts with the purposes and policies of the [C)TIWMA”

(Compl. 7 103.) By alleging that Measure E was preempted by

state law, Plaintiffs implicitly invoked the provision of the State

Constitution that requires local law to conform to statewide

enactments. This suffices to bring Plaintiffs’ claim within the

zone of interest of Cal. Const, art. XI, § 7.

App. 69

XI, § 7 guarantees that individuals and entities in

California will be subject only to local laws consistent

with the will of the state legislature and consti-

tutional framers, and thereby effectuates a funda-

mental aspect of California’s republican form of

government. It follows, therefore, that Article XI, § 7’s

“zone of interest” encompasses claims by plaintiffs

whose conduct would be restricted by a local ordi-

nance they challenge as preempted, even if the plain-

tiffs do not assert rights protected by the preempting

statute itself. Cf. Indian Oasis-Baboquivari Unified

Sch. Dist. No. 40 v. Kirk, 91 F.3d 1240, 1260 (9th Cir.

1996) (Reinhardt, J., dissenting) (disagreeing with

panel majority that student plaintiffs lacked a

particularized injury, and further arguing that they

brought claims that were arguably within the zone of

interests of ... the Supremacy Clause, as they chal-

lenge[d] the enforcement of an assertedly preemptive

state law”); Pharm. Research & Mfrs. of Am. uv.

Concannon, 249 F.3d 66, 72-74

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