Beveridge & Diamond

Beveridge & Diamond Wins Preemption Decision in Washington State Court of Appeals

November 10, 2014

Appellate litigators in Beveridge & Diamond’s District of Columbia office, working with the Washington Department of Ecology, secured a unanimous decision from the Washington Court of Appeals striking down a county ban on land application of biosolids to farmland.  The published decision in Wash. Dep’t of Ecology v. Wahkiakum Co., ___ P.3d ___, 2014 Wash. App. LEXIS 2622 (Nov. 4, 2014), establishes important precedent regarding the primacy of state over local authority in environmental regulation and has received national attention.

Biosolids are municipal sewage sludge that has been treated pursuant to federal and state standards to allow its use as a fertilizer and soil conditioner. Wahkiakum County, Washington passed an ordinance in 2011 that banned application to land of Class B biosolids, the predominant type of biosolids generated by wastewater treatment plants in the state and across the country. The state Department of Ecology sued the county to overturn the ordinance and lost in the trial court.

The Northwest Biosolids Management Association, the Washington Association of Sewer and Water Districts, the Town of Cathlamet, and the National Association of Clean Water Agencies (NACWA) retained Beveridge & Diamond at the appellate state to represent the group as amici curiae. Firm principal Jimmy Slaughter led the briefing and presented oral argument to the Court of Appeals.

In the decision for the three judge panel striking down the Wahkiakum ordinance, Judge Linda Lee wrote that the purpose of the state biosolids program “is to recycle sewage sludge by retreating it as a beneficial commodity in land applications in agriculture, silviculture, and in landscapes as a soil conditioner. . . . Farmers have come to rely on the well-established and uniform state regulation of land application of biosolids for planning and investment.”  The Court of Appeals further noted that “land application of biosolids is a widely used, widely accepted, comprehensively regulated  method by which municipalities fulfill their obligation to reduce the flow of waste to landfills.”

After reviewing the state program and the legislature’s endorsement of applying biosolids to land, the Court of Appeals held that the Wahkiakum County ban on biosolids “irreconcilably conflicts with state law . . . and is unconstitutional.”  The Court applied conflict preemption principles, finding that the ban impermissibly prohibited what the state permitted, conflicted with the legislature’s intent, and exercised authority not granted to the localities under the state program.

Most cities depend on recycling biosolids to farmland and the question of whether states or localities have primacy in regulating biosolids is of great importance to wastewater treatment plants, farmers, and their contractors. The ruling strengthens a trend of courts favoring state primacy in biosolids regulation over local authority. Beveridge & Diamond has successfully represented cities, contractors and farmers in many of these cases over the last fifteen years.

The decision is the subject of articles in the National Law Journal, Law360, and Waste360 (which quote Jimmy Slaughter), as well BNA Daily Environment Report, Inside EPA*, and newspapers across Washington State. The Northwest Biosolids Management Association issued a new release praising the outcome as a “landmark decision and a historical day for biosolids recycling!”

* Reprinted with permission.