Amicus Curiae Brief — City of Los Angeles v. Kern County

Supteme Court, U.S.

No. 09-1111 hig

APR {£2010

Bn The Orrice w -me CLERK

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

¢

BRIEF OF AMICI CURIAE THE NATIONAL

ASSOCIATION OF CLEAN WATER AGENCIES,

THE WATER ENVIRONMENT FEDERATION,

THE NORTH EAST BIOSOLIDS AND RESIDUALS

ASSOCIATION, AND THE NORTHWEST BIOSOLIDS

MANAGEMENT ASSOCIATION IN SUPPORT OF

PETITION FOR A WRIT OF CERTIORARI

7

KEITH J. JONES JAMES K. SULLIVAN

Counsel of Record WATER ENVIRONMENT

NATHAN GARDNER-ANDREWS FEDERATION

NATIONAL ASSOCIATION OF 601 Wythe Street

CLEAN WATER AGENCIES Alexandria, VA 22314

1816 Jefferson Place, NW (703) 684-2436

Washington, DC 20036 jsullivan@wef.org

(202) 833-2672

: ~ Counsel for Amicus Curtae

kjones@nacwa.org

the Water Environment

Counsel for Amicus Curiae Federation

the National Association

of Clean Water Agencies

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CAL. COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

INTERESTS OF THE AMICI CURIAE............... 1

SUMMARY OF THE ARGUMENT...................... 5

EEE cares acc tucin a taiaianeeledde bens sxemesenscnicexs 9

I. Parties Engaged in the Many Facets of

Biosolids Recycling Are Within the Broad

Zone of Interests of the Commerce Clause

and Have Prudential Standing ................. 9

A. Land Application of Biosolids is a

Critical and National Activity............. 12

B. Land Application of Biosolids is a

National Business Intertwined With

Interstate Commerce........................... 14

C. The Federal Government’s Regulation

of Biosolids Nationwide Pursuant to

Commerce Clause Authority Would

Be Undermined By Parochial Bans

Unchallengeable in Federal Court...... 20

II. The Ninth Circuit’s Decision Unfairly De-

nies Access to Federal Court..................... 22

a PPE caksicnlaciswcuidcvepbistendeaningacsneienvannenin 25

il

TABLE OF AUTHORITIES

Page

CASES

Associated Industries v. Lohman, 511 U.S. 641

ERNIE cacopsuhcaleapsseedcecaomasebensiuadnensddeoandinerataabe 1]

Association of Data Processing Serv. Orgs. v.

CA, See Gra Oe © Oi OD cntnedectincctnvedoiensccssvensioneins 9

Boston Stock Exchange v. State Tax Comm'n,

Se BE evs oteensiietdadcterentiptetninlacivetwepecets 11

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

Ke Le RONNIE DE OO EOE Pe OT DEO NT mT 18

Camps Newfound/Owatonna v. Town of Harri-

a: Sn a I irene Ss cosguvppaouadareaveumusie 15

City of Los Angeles v. County of Kern, 509

F. Supp. 2d 865 (C.D. Cal. 2007) .........ccccccrsecesersersee 12

City of Los Angeles v. County of Kern, 581 F.3d

eB FARRAR aE Seen ee ED 10

City of Philadelphia v. New Jersey, 437 U.S.

I Sereda acaba cata t a cuctiescallnintanmaeiewiioael 25

Clarke v. Sec. Indus. Ass’n, 479 U.S. 388 (1987)....... 10

Fort Gratiot Sanitary Landfill, Inc. v. Mich.

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

Gonzales v. Raich, 545 U.S. 1 (2005) ......................22 16

Healy v. Beer Inst., 491 U.S. 324 (1989) .................... 18

National Ass’n of Optometrists and Opticians v.

Brown, 567 F.3d 521 (9th Cir. 2009).............0.0....... 14

lll

TABLE OF AUTHORITIES — Continued

Page

O’Brien v. Appomattox County, 2002 U.S. Dist.

Lean CeOSe ©Z CW.D. VE. BOOZ) 0 .cccccervcvsssvercsovceves 23

Synagro-WWT, Inc. v. Rush Twp., 204 F. Supp.

ee Ry Or le SEED sie vapdicrrencnniedincrerivinncceisrnivedees 23

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

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

Welch v. Rappahannock County, 888 F. Supp.

I recs cai vaconawulatnwnsnensewctenceeevecwneseerses 23

Wickard v. Filburn, 317 U.S. 111 (1942)......0..0...000000... 8

STATUTES

I elo devsivneedviesnnner eid 6, 20

REGULATIONS

eal bel ccida atdineionanaoudacnioabaden 21

I a iirc pase celta veesieddaeanwesnevedion 16, 20, 21

49 Fed. Reg. 24,358 (June 12, 1984)... eee 21

56 Fed. Reg. 33,186 (July 18, 1991).........00000.. 21

58 Fed. Reg. 9.248 (Feb. 19, 1993) .............cccccssecoseeeee 21

iV

TABLE OF AUTHORITIES — Continued

Page

OTHER AUTHORITIES

National Association of Clean Water Agencies

Handbook, Biosolids Management Options,

Opportunities & Challenges (2006) ........................ 13

National Research Council, Biosolids Applied

to Land: Advancing Standards and Practices

(ZOOZ) ....ccsersecuessale en ibtaesanstvcctesessss 20, 21

North East Biosolids and Residuals Association,

A National Biosolids Regulation, Quality,

End Use & Disposal Survey Final Report

(200'7 ) ..«0s00sserenesoannaeeeen SEER atebnesesencsecee: 12

The National Association of Clean Water Agencies

(NACWA), the Water Environment Federation (WEP),

the North East Biosolids and Residuals Association

(NEBRA), and the Northwest Biosolids Management

Association (NBMA) respectfully submit this amici

curiae brief in support of Petitioners.’

°

INTERESTS OF THE AMICI CURIAE

NACWA, WEF, NEBRA, and NBMA agree with

Petitioners’ arguments in their Petition for a Writ of

Certiorari and offer the following additional reasons

why it is important for the Court to hear this case.

Like Petitioners, amici’s members nationwide stand

to suffer from the Ninth Circuit’s substantial narrow-

ing of the Commerce Clause to insulate from federal

judicial review in-state discriminatory and burden-

some measures like Kern County’s Measure E, a

county voter initiative which bans the Petitioners’

biosolids from Kern County.

' Pursuant to Rule 37.6 of the Rules of the Supreme Court,

counsel of record for all parties received notice at least 10 days

prior to the due date of the amici curiae’s intention to file this

brief. All parties have consented to the filing of this brief. Those

consents are being lodged herewith. No counsel for a party

authored this brief in whole or in part, and no counsel or party

made a monetary contribution intended to fund the preparation

or submission of this brief. No person other than amici curiae,

its members, or its counsel made a monetary contribution to its

preparation or submission.

2

NACWA is a non-profit advocacy association rep-

resenting nearly 300 of the nation’s publicly owned

treatment works (POTWs) that every day treat bil-

lions of gallons of wastewater and recycle thousands

of tons of biosolids. See http:/Wwww.nacwa.org. NACWA

membership includes public wastewater utilities

located all across the United States, including Peti-

tioners the City of Los Angeles, Orange County

Sanitation District (OCSD), and County Sanitation

District No. 2 of Los Angeles County. NACWA also

includes affiliate members involved in the national

business of wastewater and biosolids, such as con-

tractors, engineers and consultants. NACWA member

agencies serve the majority of the sewered population

in the United States and treat and reclaim more than

18 billion gallons of wastewater each day. NACWA

advocates the interests of its members in the legisla-

tive, regulatory, and litigation arenas. Many NACWA

members have first-hand experience with commu-

nities like Kern County that have sought to bar out-

of-county biosolids from their farmland.

WEF is a non-profit association of over 36,000

professionals and groups advancing science and best

practices on water quality and wastewater manage-

ment, including solids management. See http://www.

wef.org. WEF is the leading technical and educational

organization devoted to water quality and water

pollution control. WEF’s individual members and 81

affiliated Member Associations work in state and

local government, federal agencies, non-profit organ-

izations, academia, industry, and private practice.

3

WEF supports science-based regulation of land ap-

plication of biosolids and believes that local bans,

particularly those that target biosolids from other

jurisdictions, are harmful. In addition, the U.S. Envi-

ronmental Protection Agency (USEPA) and amici

WEF and NACWA together comprise the National

Biosolids Partnership, which works with local waste-

water agencies to improve, benchmark, and certify

their biosolids management programs in accordance

with best practices. See http://www.biosolids.org.

NEBRA is a non-profit organization in the north-

eastern United States and eastern Canada dedicated

to understanding and facilitating the recycling and

beneficial use of biosolids and other residuals as

fertilizers, soil amendments, and sources of energy.

See http://www.nebiosolids.org. NE BRA’s membership

includes individuals and organizations from the six

New England states and eastern Canada, including

wastewater treatment facility staff, farmers, environ-

mentalists, compost operators, biosolids recyclers,

and others involved with biosolids and other resi-

duals. NEBRA coordinates with other regional or-

ganizations in the field of wastewater treatment and

biosolids/residuals recycling and is widely recognized

as the source for science-based biosolids/residuals

information in New England and eastern Canada.

Like Petitioners, NEBRA and many of its members

have grappled with efforts by local governments to

restrict or discriminate against biosolids by place of

origin, similar to the situation confronting Petition-

ers.

4

NBMaA, incorporated in 1993, is a non-profit pro-

fessional membership association working to advance

environmental sustainability through the beneficial

use of biosolids. See http://www.nwbiosolids.org.

NBMA membership spans Alaska, Idaho, Oregon,

Washington and British Columbia, with 191 members

that include public wastewater agencies and private

companies. An estimated 88% of the biosolids pro-

duced in the Pacific Northwest is safely and bene-

ficially used in agriculture, forestry, land reclamation,

and landscaping. Many of NBMA’s biosolids pro-

ducers supply biosolids to customers across county

and state lines, which is an important clement of the

success of biosolids programs in the northwest.

NBMA’s biosolids programs rely on the ability to free-

ly transport this valuable commodity and NBMA is

concerned with the Ninth Circuit’s restriction of

NBMA’s ability to reach its customers.

Ensuring safe, environmentally sustainable, and

cost-effective management of biosolids is a key man-

date of amici and their members. Amici are also

committed to preserving the ability of municipalities

to choose the method of biosolids management that

works best for their communities, including the op-

tion of land application. Recycling biosolids through

land application fulfills these criteria and constitutes

an essential component of America’s wastewater man-

agement system.

Amici have an interest in this case to provide the

Court a national perspective on the importance of

land application of biosolids to America’s clean water

5

utilities and their many millions of rate payers. Amici

also write to underscore the repercussions for clean

water utilities and their business and farming part-

ners nationwide that will result from the Ninth

Circuit’s denial of Petitioners’ prudential standing to

even assert a Commerce Clause claim against dis-

crimination directed toward out-of-county entities.

Amici’s members are unified in their concern with the

Ninth Circuit’s closing the federal courtroom to chal-

lenges to blatantly discriminatory local laws based on

the happenstance of whether biosolids physically

cross a state line.

SUMMARY OF ARGUMENT

The Ninth Circuit’s decision that Petitioners are

not within the “zone of interests” of the Commerce

Clause is important and conflicts with the Court’s

precedent upon which amici and their members have

relied for many years. The Ninth Circuit’s decision

that biosolids recycling is not an activity in interstate

commerce is at odds with the record in this case and

the reality of the multi-billion dollar national in-

vestment in biosolids recycling in America. If left un-

corrected, it will further encourage local activists

opposed to biosolids recycling to pursue similar initia-

tives that discriminate against wastewater treatment

plants serving urban communities and thwart federal

and state laws and policies that encourage biosolids

recycling. Narrowing standing for agencies, busi-

nesses, and farmers pursuing biosolids recycling to

6

challenge land application restrictions will limit bio-

solids management options, increase sewer rates,

deprive thousands of farmers of a valuable and in-

expensive fertilizer and soil amendment, and undercut

the goals and policies of the federal Clean Water Act.

33 U.S.C. 8 1345.

I.

A. A local ban on the land application of bio-

solids, particularly one imposed by a vast agricultural

county like Kern County, substantially affects inter-

state commerce. Land application of biosolids is prac-

ticed nationwide, every day involving thousands of

farms in hundreds of counties. It plays an indis-

pensable role in the vita] round-the-clock public ser-

vice of biosolids management pursued by wastewater

agencies across the country. Indeed, the majority of

biosolids presently produced in the United States are

managed through land application. Exempting Meas-

ure E from the purview of the Commerce Clause and

federal judicial review will jeopardize biosolids pro-

grams that are regularly threatened with similar

local bans.

B. Recycling of biosolids through land applica-

tion is a significant undertaking that implicates

many facets of the national economy, including mil-

lions of residential and business sewage treatment

customers, thousands of miles of metropolitan sewer

lines that span multiple jurisdictions, complex waste-

water treatment plants, fleets of trucks, biosolids

7

managers,\ farmers, and the consumers of biosolids-

fertilized crops. Biosolids commerce crosses hundreds

of county and state lines every day. The trade is

national, involving thousands of daily transactions as

well as long-term contracts and financial commit-

ments among many partics for goods, services, and

capital. The Ninth Circuit’s decision overlooks the

national commerce in this valuable organic material

that is discriminated against and hamstrung by pa-

rochial and unscientific local bans like Kern County’s.

C. The Ninth Circuit’s view that Kern County’s

land application ban does not implicate the Com-

merce Clause is incompatible with federal laws and

regulations that, promulgated pursuant to the Com-

merce Clause, directly govern land application activi-

ties. This carefully crafted federal regulatory frame-

work enables the safe and beneficial reuse of a valu-

able byproduct of the modern wastewater treatment

process. Exempting discriminatory bans on out-of-

jurisdiction biosolids from federal judicial review will

encourage more bans, frustrate federal intent, and

lead to significant disruption on a national scale of

biosolids management programs.

Ii.

The Ninth Circuit’s misapplication of prudential

standing also diminishes access to federal courts for

POTWs, their contractors, and farmers to challenge

local land application bans or other discriminatory

biosolids legislation. This is particularly true for

8

participants in the biosolids market that may not

directly ship their biosolids out-of-state but which

nevertheless have biosolids management programs,

like Petitioners’, that are tied to and impact inter-

state commerce. The strict prudential standing re-

quirements placed on Petitioners by the Ninth Circuit

particularly burden those biosolids management

programs in geographically iarge states that by geo-

graphical chance need not physically ship biosolids

across state lines.”

The Ninth Circuit’s sua sponte imposition of a

stringent prudential standing requirement that de-

nied merits review to Petitioners is contrary to the

extensive reach of the Commerce Clause and imposes

an arbitrary barrier to access to justice. Indeed, the

farmer found to be subject to the Commerce Clause

merely by growing wheat for home consumption in

Wickard v. Filburn, 317 U.S. 111 (1942), would be

surprised to learn that the Constitution provides him

no protection against local efforts to bar his use of a

USEPA-approved and regulated fertiliz.r produced

under the authority of the Clean Water Act.

+

* Kern County, California is one of America’s largest coun-

ties, larger than the States of Connecticut, Rhode Island and

Delaware combined, and is located far inland in the country’s

third-largest state, underscoring how tying standing to crossing

a state line is unfair and irrational.

Y

ARGUMENT

1. Parties Engaged in the Many Facets of

Biosolids Recycling Are Within the Broad

Zone of Interests of the Commerce Clause

and Have Prudential Standing

This case is of national importance and should be

heard by the Court to preserve federal judicial review

of local laws that discriminate against biosolids by

place of origin. Biosolids management, and tn particu-

lar recycling biosolids to farms, forest lands, and

mine reclamation, is vital to the nation’s wastewater

infrastructure and is a large national business. Ap-

proximately 16,000 wastewater plants in the United

States spend about $65 billion dollars annually,

nearly one-third of which is devoted to management

of solids residuals from the treatment process. It is

clear that the governmental agencies, businesses,

professionals, and farms that pursue this trade

such as the eleven varied public and private Petition-

ers in this case — are “arguably within the zone of

interests to be protected or regulated by the statute

or constitutional guarantee in question.” Association

of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150,

153 (1970).

The Ninth Circuit’s refusal to adjudicate the mer-

its of Petitioners’ Commerce Clause claim is inconsis-

tent with the Court’s well-established jurisprudence

on prudential standing. The Ninth Circuit opinion

acknowledges Supreme Court precedent finding that

the “zone of interests” test “is not meant to be espe-

cially demanding;” a plaintiff must only “arguably”

10

fall within the zone of interests, and a plaintiff’s

interests will fail only if “marginally related to or in-

consistent with the purposes implicit” in the dormant

Commerce Clause. City of Los Angeles v. County of

Kern, 581 F.3d 841, 846-847 (9th Cir. 2009); Clarke uv.

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

added). Further, the test principally applies to cases

examining congressional intent and regulatory inter-

pretations under the Administrative Procedure Act.

Clarke, 479 U.S. at 400 n.16 (“the test is most

usefully understood as a gloss on the meaning of

[5 U.S.C.] § 702 ... it is not a test of universal

application”). By contrast, the “zone of interests” test

should not impede Petitioners’ effort to protect the

commonly shared right to engage in commerce free of

discriminatory and burdensome local barriers. See id.

(noting that the Supreme Court has only once ad-

dressed the zone of interests test for a Commerce

Clause claim, and found it satisfied). In view of the

broad scope of the Commerce Clause and the breadth

of biosolids commerce and federal biosolids regula-

tion, as explained here and in Petitioners’ brief, the

prudential standing threshold is satisfied in this case.

Furthermore, the Ninth Circuit’s decision ignores

decisions of this Court which clearly indicate that

discriminatory local waste management laws such as

Measure E create the exact kind of bias that dormant

Commerce Clause jurisprudence is intended to pre-

vent. See United Haulers Ass’n, Inc. v. Oneida-

Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 345

(2007) (Commerce Clause protects against local efforts

11

to “shift the costs of regulation” to outside interests

with no say in the local political process). The deci-

sion below also overlooks the Court’s clear precedent

that the reach of the Commerce Clause extends to

local governments when they attempt to impede

activities that impact interstate commerce. See Fort

Gratiot Sanitary Landfill, Inc. v. Mich. Dept. of Na-

tural Res., 504 U.S. 353, 361 (1992) (“a State (or one

of its political subdivisions) may not avoid the stric-

tures of the Commerce Clause by curtailing the move-

ment of articles of commerce through subdivisions of

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

{striking down law restricting movement of solid waste

among counties); accord Associated Industries v.

Lohman, 511 V.S. 641, 650 (1994) (“[DJiscrimination

is appropriately assessed with reference to the

specific subdivision in which applicable laws reveal

differential treatment. Any other approach would frus-

trate the Commerce Clause’s central objective of se-

curing a national ‘area of free trade among the

several States’”) (quoting Boston Stock Exchange v.

State Tax Comm’n, 429 U.S. 318, 328 (1977)). The

Court repeatedly has addressed and protected the

rights of parties like Petitioners engaged in the busi-

ness of waste management and the Ninth Circuit’s

ruling undercutting that precedent warrants review

by this Court.

12

A. Land Application of Biosolids is a Crit-

ical and National Activity

Biosolids are a natural and valuable by-product

of the modern wastewater treatment process. As the

District Court observed in its ruling, the “collection

and treatment of wastewater, and the resulting gen-

eration of biosolids that must be recycled or disposed

of, 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.”

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

865, 871 (C.D. Cal. 2007). Recycling biosolids and

their many nutrients to farms, forest lands, and mine

reclamation sites has long been the most popular op-

tion for biosolids management by local governments

that treat wastewater because it is time-tested, cost-

effective, sustainable, environmentally sound, endorsed

by USEPA, and embraced by farmers and open space

advocates.

The latest data compiled in 2004 from state

regulatory agencies, USEPA, individual wastewater

treatment facilities, and other sources indicate that

7,180,000 dry tons of biosolids were produced and

beneficially used or disposed of in the United States

during 2004. North East Biosolids and Residuals

Association, A National Biosolids Regulation, Quality,

End Use & Disposal Survey Final Report, at 1 (2007)

(NEBRA Report), available at http://www.nebiosolids.

org/uploads/pdf/NtlBiosolidsReport-20July07.pdf. Pro-

duction of biosolids on a massive scale is a necessity

13

of modern life, and the amount of biosolids produced

in the United States will increase with population

growth. The network of public agencies, contractors,

truckers, farmers, and landowners necessary to man-

age this tonnage of organic material is immense,

employing many thousands of professionals, scientists,

managers, truckers, farmers and laborers.

The three primary methods of biosolids manage-

ment in the United States are land application,

landfilling, and incineration. See generally National

Association of Clean Water Agencies, Biosolids Man-

agement Options, Opportunities & Challenges (2006).

National surveys on biosolids use indicate that approx-

imately 55% of all biosolids in the U.S. are recycled

through land application for agronomic, silvicultural,

and/or land restoration purposes, while 45% are

managed primarily through landfills or incineration.

NEBRA Report at 1. This means that the majority of

biosolids in the U.S. — approximately 3,929,000 tons

per year — are beneficially recycled through land

application. Many major U.S. cities use land applica-

tion as a significant component of their biosolids

management program, including New York City, Los

Angeles and its suburbs, Boston, Charlotte, Chicago,

Denver, Houston, Milwaukee, Orlando, Philadelphia,

Phoenix, Portland, Seattle/King County, the District

of Columbia and its suburbs, and many others.

Proper, safe, and effective management of bio-

solids is a key part of clean water agencies’ envi-

ronmental mandate, and land application provides

an important option for recycling a product with

14

beneficial properties. The numbers outlined above rep-

resent the vast amounts of biosolids that municipal

clean water utilities must process and the critical role

played by land application in managing this resource.

They also suggest the magnitude of the problem that

utilities would face if land application was no longer

an option due to protectionist measures barring out-

of-county biosolids such as that passed by Kern

County’s voters. If the Kern County ban is allowed to

stand, it is very likely that other communities across

the nation will erect similar barriers and bans, creat-

ing a significant environmental and financial chal-

lenge for municipal wastewater treatment agencies

nationwide, and the communities they serve, which

rely on land application.

B. Land Application of Biosolids is a Na-

tional Business Intertwined With In-

terstate Commerce

The Court has always broadly defined the inter-

state commerce protected by the dormant Commerce

Clause and should hear this case to correct the Ninth

Circuit’s error that threatens to deny Commerce

Clause protections to a large sector of the economy.

Biosolids management programs, both individually

and in the aggregate, are part of interstate commerce

and plainly meet the Supreme Court’s criteria that

they are more than “marginally” related to the pur-

poses implicit in the dormant Commerce Clause. Cf.

National Ass’n of Optometrists and Opticians ov.

Brown, 567 F.3d 52f, 524 (9th Cir. 2009) (finding

15

dormant Commerce Clause applicable to case because

“retail sale of eyewear involves and affects interstate

commerce such that Congress could regulate in that

area”).

Land application of biosolids occurs in almost all

fifty states and the thousands of local biosolids pro-

grams have a powerful and pervasive impact on the

national economy. The variety and size of the inputs

and expenditures for biosolids programs create an

aggregate impact on the national economy that belies

any characterization of biosolids commerce as a solely

intrastate phenomenon with an insignificant effect on

the national economy. Plainly, the large-scale bio-

solids operations of Petitioners encompassing 8,000

acres of land, two large farms, 1,000 tons of biosolids

shipped and spread daily with numerous heavy trucks

and heavy equipment, and scores of laborers, manag-

ers, technicians, have the requisite economic impacts

to fall within the zone of interests of the Commerce

Clause. Cf. Camps Newfound/Owatonna v. Town of

Harrison, 520 U.S. 564 (1997) (small summer camp

that included out-of-state campers had standing under

Commerce Clause).

Every metropolitan wastewater plant and sewage

collection system is a multi-billion dollar investment

that rivals highways for the scale and magnitude of

capital] and maintenance costs. Generation of bio-

solids occurs constantly and is administered by pro-

fessionals and laborers around the clock. Testing and

quality control of biosolids to meet USEPA specifi-

cations (as well as any additional state and local

16

requirements, which are extensive in many states) for

trace chemicals, metals, and microorganisms requires

thousands of technicians and scientists. Agencies and

their contractors purchase and use large numbers of

tractor trailers, front-end loaders and spreaders to

haul biosolids long distances and spread them across

varied terrain, including fields, forests, and mine sites.

Trains are also used to transport biosolids across

many state lines. At farm and forest sites, more

testing and monitoring occurs as biosolids are care-

fully applied to meet plant needs and avoid adverse

impacts on the environment or public health. Farmers

are limited by federal law in the crops they can grow

on biosolids amended soil and must observe certain

harvest restrictions for crops destined for human

consumption. See, e.g., 40 C.F.R. Part 503. All of these

activities involve, on a national scale, financing, equip-

ment purchases and movement, data management,

and personnel relocation.

Biosolids cross state lines in massive amounts.

This is not a precondition to standing, as the Ninth

Circuit suggested, but instead indisputably qualifies

any commerce in biosolids for protection under the

Commerce Clause. See, e.g., Gonzales v. Raich, 545

U.S. 1, 17 (2005) (Court’s decisions “firmly establish| }

Congress’ power to regulate purely local activities

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

have a substantial effect on interstate commerce.”)

(upholding Commerce Clause authority over six can-

nabis plants grown for home medicinal use). The

record in this case reflects that in California alone,

17

750,000 dry tons of biosolids are produced annually,

over 20% of which are currently managed out-of-state.

Petitioners’ Appendix 141-142(9418-19), 144(925).

This often means transporting the biosolids to neigh-

boring states for land application or for burial in

landfills.” It also involves, in a limited number of

instances, shipping the residual materials from bio-

solids, such as the ash that is left over after biosolids

are incinerated, across state lines for beneficial reuse

or final disposal. POTWs have contractual relation-

ships with engineering, consulting, or management

firms to help maintain the necessary equipment for

their biosolids programs, to help run the programs

more efficiently, or to transport their biosolids residu-

als. In many instances, the firms contracting with the

POTWs for these services are national companies

° Petitioners OCSD and City of Los Angeles also ship some

of their biosolids out-of-state to Arizona and face the prospect of

shipping much larger quantities, at greater expense, should

Kern’s Measure E ban yo into effect. Indeed, Measure E would

require the diversion of more than 1,000 tons of biosolids daily,

imposing an additional cost of over $4 million annually to the

City of Los Angeles alone, and unquantified costs to the broader

market from increased uncertainty, scarcity of land application

sites, and air pollution and traffic accidents from the greater

traveled distances. See, e.g., Petitioners’ Supplemental Brief to

the Ninth Circuit at 7 (and record evidence cited therein).

Moreover, as emphasized by Kern’s opposition to a preliminary

injunction in this case, Petitioner Shaen Magan (one of the

farmers and truckers) is actively engaged in biosolids activities

between California and Arizona.

18

operating across the country. The interstate nature

of these contracts, along with the funds that the

POTWs pay across state lines to the firms in ex-

change for their services, obviously impact interstate

commerce. Additionally, some utilities sell their highly

processed biosolids as commercial fertilizer nation-

wide.”

The effects of biosolids management on interstate

commerce are also apparent from the financial and

business disruption that would occur if land applica-

tion programs were forced to cease due to bans like

Measure E. The Supreme Court’s dormant Commerce

Clause jurisprudence has long recognized that a local

discriminatory act must be viewed in the context of

how similar actions, left unchecked, would impact the

national economy. See Healy v. Beer Inst., 491 U.S.

324, 336 (1989) (court must consider not only “the

consequences of the [ordinance] itself, but also .

how the challenged [ordinance] may interact with the

legitimate regulatory regimes of other States and

what effect would arise if not one, but many or every,

State adopted similar legislation”); C & A Carbone,

Inc. v. Town of Clarkstown, 511 U.S. 383, 406 (1994)

“ For instance, New York City currently exports biosolids

for land application to Colorado, Florida, and Virginia, among

other states.

* NACWA member the Milwaukee Metropolitan Sewerage

District has sold its highly processed biosolids as commercial

fertilizer under the commercial name Milorganite® on the na-

tional market for over 80 years.

19

(“If the localities in [other] States impose the type of

restriction on the movement of waste ... the free

movement of solid waste in the stream of commerce

will be severely impaired.”). The Ninth Circuit’s

decision overlooks the record evidence regarding

threats to land application in California from other

counties emulating Kern, threats that amici and their

members face in other parts of the nation in fulfilling

their mission to foster the recycling of biosolids.

The Ninth Circuit decision clashes with this

Court’s precedent condemning restrictions on com-

merce based on place of origin and may force POTWs

that currently land apply biosolids to begin managing

their biosolids through alternative methods such as

incineration or landfilling. Many POTWs may not be

able to find adequate room in their local landfills to

accept the high volume of biosolids produced on a

daily basis, thus requiring the shipment of the bio-

solids great distances across state lines to find land-

fills with sufficient capacity. POTWs making a switch

from land application to either of these other man-

agement methods would need to raise significant

amounts of capital to make the necessary operational

transition and purchase the needed new equipment.

This capital oftentimes is raised through a loan or

bond issuance obtained through national, interstate

financial markets. Additionally, a utility making a

major transition in its biosolids management pro-

gram would need to contract with a variety of en-

gineering and consulting firms to design and install

the needed new equipment and facilitate shipment of

20

that equipment to the POTW. These contracts and

shipments will often involve out-of-state actors, thus

establishing a clear interstate commerce impact re-

sulting from the utility’s altered biosolids management

practices in response to a local ban on land application.

C. The Federal Government’s Regulation

of Biosolids Nationwide Pursuant to

Commerce Clause Authority Would Be

Undermined By Parochial Bans Un-

challengeable in Federal Court

The Ninth Circuit did not address the pervasive

federal regulation of land application of biosolids,

which by itself should bring Petitioners within the

zone of interests for a Commerce Clause challenge.

USEPA has directly regulated land application of

biosolids since the late 1970s, following Congress’

passage of the Clean Water Act pursuant to its Com-

merce Clause authority. National Research Council,

Biosolids Applied to Land: Advancing Standards and

Practices (2002), at 27 (NRC Report), available at

http://www.epa.gov/waterscience/biosolids/nas/complete.

pdf. In 1987, Congress amended the Clean Water Act

to require USEPA to develop comprehensive rules for

land application. 33 U.S.C. § 1345. USEPA complied

with this directive in 1993 by publishing updated

regulations on biosolids at 40 C.F.R. Part 503. The

current federal Part 503 regulations are the product

of decades of scientific research, including thousands

of public comments and independent review. Another

key element of the federal regulatory program to

21

maintain the safety of land application of biosolids is

USEPA’s promulgated industrial pretreatment regu-

lations, 40 C.F.R. Part 403, to prevent the intro-

duction of pollutants into the municipal system; like

Part 503, these regulations apply to wastewater

utilities nationwide. There are also a number of other

federal biosolids policies that have been promulgated

over the past three decades, formulated by USEPA in

conjunction with other federal agencies and repre-

senting USEPA’s long-standing policy of promoting

the beneficial use of biosolids across the U.S. See

NRC Report at 28; USEPA, Policy on Municipal

Sludge Management, 49 Fed. Reg. 24,358 (June 12,

1984); USEPA, et al., Interagency Policy on Beneficial

Use of Municipal Sewage Sludge on Federal Land, 56

Fed. Reg. 33,186 (July 18, 1991). In promulgating its

Part 503 regulations in 1993, USEPA called biosolids

a “valuable resource” and “encourage|[d] the beneficial

use of sewage sludge (e.g., through land applica-

tion)... .” 58 Fed. Reg. 9,248, 9,324 (Feb. 19, 1993).

These items all reflect a broad federal commit-

ment, under Commerce Clause authority, to the bene-

ficial reuse of biosolids, including land application, as

well as a concerted effort to establish a scientifically

sound, comprehensive national biosolids management

program. The Ninth Circuit’s exemption of Measure E

from Commerce Clause scrutiny is inconsistent with

Congress’ recognition of, and USEPA’s authority to

regulate, biosolids land application as a vital part of

the national economy. That Congress and USEPA

have codified savings clauses that preserve a role for

22

consistent local (and state)” regulation of land appli-

cation does not alter the fact that Petitioners’ activi-

ties fall within the scope of the Commerce Clause.

Affording individual communities like Kern County

impunity to discriminate against out-of-county actors

that happen to be in-state would undermine this

carefully calibrated regulatory system and create

significant complications in the national management

of biosolids. |

Il. The Ninth Circuit’s Decision Unfairly De-

nies Access to Federal Court

Bicsolids management programs and local bar-

riers to their free movement and use implicate a large

national economic activity subject to regulation under

all aspects of the Commerce Clause. Biosolids plainly

are an article in commerce under the Court’s holdings

and participants in biosolids recycling should have

standing to challenge discriminatory burdens, wheth-

er imposed at the state or county line. The Ninth

Circuit’s decision creates a specific and troubling

access to justice issue for agencies, contractors and

farmers in geographically large states, such as Peti-

tioners, whose biosolids management programs do

not physically ship across state lines the particular

biosolids banned by a local ordinance.

* At the state level, over thirty states have enacted their

own biosolids regulations in addition to the federal standards.

23

The Ninth Circuit’s prudential standing test for

challenging land application bans essentially requires

the physical movement of biosolids across state lines,

and thereby imposes a significant new burden that is

inconsistent with both the actual business of biosolids

management as practiced in national commerce and

the litigation to date over the issue.’ The Ninth Cir-

cuit’s decision creates a distinction between those

POTWs that ship biosolids out-of-state and those that

do not, when they may suffer the same economic

harm from discriminatory local bans. The decision

further relegates those POTWs that do not ship their

biosolids directly out-of-state to litigating the issue of

discriminatory local land application bans in state

courts that are not as familiar with federal Commerce

Clause and Clean Water Act issues and that are not

as well-positioned as federal courts to hear and decide

these complex issues. These state forums wiil also be

in the jurisdiction that passed the offending legisla-

tion and will be subject to intense pressure to uphold

bans targeting urban wastes from outside the county.

The Ninth Circuit’s arbitrary hurdle discrimi-

nates against POTWs that do not transport biosolids

’ The prudential standing of Petitioners was not challenged

in the District Court, and other federal courts have heard Com-

merce Clause challenges to local biosolids bans without ques-

tioning the standing of contractors and farmers to bring such

claims. See, e.g., O’Brien v. Appomattox County, 2002 U.S. Dist.

LEXIS 22549 *2 (W.D. Va. 2002); Synagro-WWT, Inc. v. Rush

Twp., 204 F.Supp. 2d 827, 842-43 (M.D. Pa. 2002); Welch v.

Rappahannock County, 888 F. Supp. 753 (W.D. Va. 1995).

24

out-of-state and unfairly prevents utilities from

accessing the federal court system to challenge land

application bans. This result holds even if the overall

impact on interstate commerce from the biosolids pro-

gram that does not ship out-of-state is just as signifi-

cant as another, similar-sized program that does ship

out-of-state. The lower court ruling means that the

City of Phoenix, Arizona, for example, could secure

federal court review if it intended to ship biosolids to

Kern County, but Southern California biosolids gener-

ators and contractors cannot. This result is plainly at

odds with the Court’s precedent on both prudential

standing and the Commerce Clause.

Given the smaller physical distances between

state boundaries, many POTWs in the eastern part of

the country have hiosolids programs that involve the

physical shipment of residuals over state lines. By

contrast, similar POTWs are located in the midwest-

ern or western part of the nation, where the overall

physical size of states tends to be larger and much

greater distances separate state boundaries.” This

* A perfect example is NACWA member the City of Phila-

delphia which, located in southeastern Pennsylvania and very

close to borders with the states of New Jersey, Delaware, and

Maryland, ships a significant portion of its biosolids across state

lines to Maryland and Virginia and thus would presumably meet

the Ninth Circuit’s prudential standing test to protect those

operations. By contrast, Petitioners, all located along the South-

ern California coast and a significant distance from any state

boundaries, are prevented from bringing a federal Commerce

Clause claim in federal court against the Kern County ban

(Continued on following page)

25

geographical reality places the latter POTWs and

others involved in biosolids commerce in large western

states such as California at a significant disadvantage

relative to their eastern counterparts when it comes

to accessing federal courts to challenge discrimina-

tory local bans on land application. Given this dis-

parate impact on POTWs in larger states, the Ninth

Circuit’s decision should be reviewed to prevent

POTWs, their contractors, and farmers from losing

access to federal courts to challenge discriminatory

local legislation.

CONCLUSION

The Court has never hesitated to address and

protect legal rights involving unpopular but necessary

articles of commerce, such as solid waste. In the semi-

nal 1976 case striking down New Jersey’s ban on out-

of-state garbage, the Court found unlawful “the

attempt by one State to isolate itself from a problem

common to many....” City of Philadelphia v. New

Jersey, 437 U.S. 617, 628 (1978). The Court should

act again to ensure that the biosolids likewise are

deemed articles in commerce entitled to Commerce

Clause protections in the face of local legislation

discriminating against biosolids on the basis of their

origin. NACWA, WEF, NEBRA, and NBMA support

because none of the biosolids shipments currently cross state

lines.

26

Petitioners’ request for a writ of certiorari and believe

a writ should issue.

Respectfully Submitted,

KEITH J. JONES

Counsel of Record

NATHAN GARDNER-ANDREWS

NATIONAL ASSOCIATION OF CLEAN

WATER AGENCIES

1816 Jefferson Place, NW

Washington, DC 20036

(202) 833-2672

kjones@nacwa.org

Counsel for Amicus Curiae

the National Association

of Clean Water Agencies

JAMES K. SULLIVAN

WATER ENVIRONMENT FEDERATION

601 Wythe Street

Alexandria, VA 22314

(703) 684-2436

jsullivan@wef.org

Counsel for Amicus Curiae

the Water Environment

Federation

Dated: April 16, 2010