California Association of Sanitation Agencies
Kern County Measure E Ordinance Litigation
On Thursday, June 9, 2011 Tulare County Superior Court Judge Lloyd Hicks granted a Preliminary Injunction (PI) preventing the implementation of voter approved Measure E in Kern County. In 2006 voters passed Measure E which would prohibit the land application of biosolids in the unincorporated parts of the County. This has been seen as largely a rural/urban dispute between Kern and its neighbors in Los Angeles and elsewhere. The Plaintiffs (led by the City of LA and including CASA) challenged the ordinance in state court in January 2011 after a similar case was dismissed by a federal district court, where it had originally been filed in 2006. The District Court initially invalidated the ordinance on federal and state law grounds, but the case was dismissed after the 9th Circuit Court of Appeals held the plaintiffs lacked standing to bring the federal commerce clause claim since all biosolids applied in Kern County were of California origin. The refiled state claim alleges Measure E is preempted by the California Integrated Waste Management Act, exceeds local police powers and violates the federal commerce clause. In seeking the PI CASA provided an expert declaration as did noted researchers from California and elsewhere. In response Kern County provided one expert declaration to which the plaintiffs responded with their own by Dr. Ian Pepper from the University of Arizona. In granting the PI, Judge Hicks indicated that there is a strong likelihood that the City of LA and its fellow plaintiffs will prevail on both the IWMA and Police Power issue. Having identified two bases for victory, the judge did not address the commerce clause issue. A trial date has not yet been set but it will be before Judge Hicks in Tulare County. On June 21st, Kern County Supervisors decided to appeal the decision in the 5th District Court of Appeal in Fresno.