# Petition for Writ of Certiorari — City of Los Angeles v. Kern County > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1734%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2010 - **Citation:** 560 U.S. 939 ## Text ; 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 addre [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1734%3A1. Public record. Not legal advice.