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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2010
- **Citation:** 560 U.S. 939

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1734%3A5. Public record. Not legal advice.