Judge Lloyd Hicks released a 48 page tentative opinion stating that Measure E, the ordinance banning land application of biosolids in the unincorporated areas of the county, is preempted by state recycling laws and exceeded Kern's police powers. Jimmy Slaughter from Beveridge and Diamond released the following:
We received this good decision striking down Measure E (attached). Technically, under California procedure it's called a "tentative decision," but this will not be altered in any material way. Feel free to distribute widely. Here are some highlights:
Judge Hicks wrote that that Measure E “is invalid and void for all purposes, for the dual reasons that it exceeds Kern’s police power authority and is preempted by state law.”
On the police power claim, the Court ruled in its statement of decision that “the overwhelming weight of the evidence is that there is no basis in fact for any determination that land application of biosolids poses any risk to Kern County residents, let alone a real and substantial risk that would be alleviated by banning such land application . . . . Los Angeles has met its burden of producing evidence to the effect that there is no basis in fact for Measure E’s public welfare claims. . . . There is no evidence of risk to human health.”
On the preemption claim, the Court ruled that the California Integrated Waste Management Act (CIWMA), which requires that all local governments in California promote and maximize recycling, was controlling over a local voter initiative and thus preempted Measure E. The Court held that “Measure Eprohibits what CIWMA requires. . . . Measure E is in direct conflict with, and inimical to, CIWMA, and is therefore, for that reason, also void.”
There are many strong findings of fact based on your good testimony. Thank you again for your excellent work that made this result possible.
Jimmy Slaughter, Beveridge and Diamond