Campbell sludge fight hinges on untried theory
By Sarah Watson
swatson@newsadvance.com
January 6, 2007
http://www.newsadvance.com/servlet/Satellite?pagename=LNA/MGArticle/LNA_BasicArticle&c=MGArticle&cid=1149192531668&path=
The fight against biosolids has traditionally been a land use or regulatory battle, but in Campbell County, the war is headed in a new direction: challenging corporate constitutional rights.
Tom Linzey, a Pennsylvania lawyer who was hired by a citizens group that wants to ban sewage sludge in the county, said the biosolids issue isn’t about land use at all. “It’s about the democratic authority to say no to something coming in (a community),” Linzey said.
He is using those concepts as the gist of a draft ordinance presented last week to the Board of Supervisors that would ban corporations from spreading sludge on county farmland.
Five corporations control about 70 percent of the nation’s sludge, the solid leftovers from wastewater treatment plants, Linzey said. By prohibiting corporations from applying biosolids, the ordinance would essentially ban the use of sewage sludge as fertilizer in the county.
The ordinance is currently undergoing a first round of legal scrutiny from county and state attorneys.
Campbell administrator David Laurrell said the county has sent a copy to the Virginia attorney general for review and has been in contact with area state legislators.
While the ordinance has already drawn the attention of citizens’ groups challenging biosolids applications in other counties, some environmental lawyers sharply question its chances of success.
The draft ordinance, in general, challenges corporate constitutional rights and reinforces individual citizen’s rights on state and national levels.
The draft, written by several lawyers including Linzey, cites three democratic documents as the legal base for the argument: the Declaration of Independence, the U.S. Constitution and the Virginia Constitution. The dominant theme throughout the draft is that governmental powers have always been derived from the people and the government is responsible for protecting the health and welfare of its citizens.
In Virginia, counties are responsible for ensuring the safety, health and welfare of the citizens and that is why Campbell County officials should take a long, hard look at the bigger picture before tossing the draft out, said Linzey, the co-founder and executive director of the Community Environmental Legal Defense Fund, has worked with municipalities in Pennsylvania on sludge-related ordinances. In Pennsylvania, townships are responsible for protecting the health and welfare of its citizens, just as counties in Virginia are, Linzey said.
The 1995 Widener University Law School graduate is working free of charge with the Citizens Against Toxic Sludge, a grass-roots community group that formed recently in Campbell County in response to a biosolids permit modification that, if approved, would increase the amount of county land allowed to receive sludge to more than 3,000 acres.
The ordinance Linzey and Citizens Against Toxic Sludge are proposing doesn’t ban all biosolids in the county - just those spread by corporations or people using corporations.
“If you had a pickup truck and backed it up to the Richmond sewage plant and you brought it back to your garden and you wanted to apply it to your garden,” you could, as long as you followed the more stringent testing regulations proposed in the draft ordinance, Linzey said.
Those additional regulations include requiring land appliers to pay the county for testing each truckload of sludge for pathogens and pollutants.
The county is powerless to enact its own regulations, Linzey said, because state and federal laws allow the use of sewage sludge as fertilizer as long as individuals or corporations comply with all laws and regulations.
In Virginia, the state health department is charged with managing biosolids permits and regulations.
Often when corporations challenge municipal laws, the first argument is their constitutional rights are being trampled, Linzey said. He questions the existence of corporate constitutional rights in the first place.
“When municipalities pass something, the corporation punishes the community with constitutional rights which were initially intended for residents of the community,” he said. “When faced with a $12 million lawsuit, people freak out and that’s why municipal officials don’t represent the people in the community, they represent the corporations.”
Additionally, corporations can sue to protect their rights and include future lost profits in settlements, Linzey said. “They don’t have to put sludge on the ground to make money,” he said. “We operate with the assumption that will happen.”
Linzey has helped dozens of small rural communities in Pennsylvania pass similar ordinances restricting corporations from spreading biosolids. He said no sludge ordinance drafted by his organization has been challenged in court, yet.
“That’s fascinating,” he said. “We want them to because these ordinances are all about provoking the challenge,” he said.
“The sludge companies look at the ordinances and understood the layers they would have to peel to overturn them,” he said. “It puts them in an interesting issue of arguing about corporate rights and puts them in a very weird position that they have to argue anti-democratic arguments to advance their position and overturn the ordinance.”
Several environmental lawyers who briefly reviewed the draft ordinance said they strongly believed the ordinance wouldn’t hold up in court.
The ordinance “appears to be inconsistent with current law in Virginia,” said John Sheehan, a Richmond lawyer who represents the Virginia Association of Municipal Water Agencies. He cited a ruling in Amelia County that said “cities, towns and counties can’t make any laws that are inconsistent with the law of the commonwealth of Virginia.”
If the draft ordinance were to be enacted by Campbell County and subsequently challenged in court, “I think that courts would look at what is the intent of the legislation,” Sheehan said. “It says right in the beginning that it’s seeking to ban the land application of sewage sludge and because the state has regulations on sewage sludge that this would be inconsistent with those regulations.”
“It’s an attempt to cloak the ban in constitutional language,” he added.
Tim Hayes, an environmental attorney with Hunton and Williams in Richmond, said he didn’t think the ordinance would pass the “red-face test, where you can defend it without your face turning red.”
“I would say that whether it were biosolids or selling ice cream,” he said.
“There’s nothing they can do to keep it out of the county because it’s lawful,” if it’s being used with accordance with state regulations.
Hayes said the ordinance cites the U.S and Virginia constitutions as an authority for localities, but the sections cited don’t grant authority to anyone. In Virginia, Hayes said, the General Assembly determines what powers counties have.
“It appears to be saying, OK, you can’t ban land application but you can prohibit specific legal entities like legal corporations from doing it,” he said. A locality can’t decide who gets protections under the U.S. Constitution or Virginia Constitution, he said.
Hayes said a corporation has a right to assert whatever it wants and localities can’t stop it. “The law is clear that corporations have legal rights and those rights can’t be taken away from a locality.”
While the opinion from county attorney David Shreve won’t be in until later this week, Campbell officials are also working with several area state senators on the issue.
The county has also submitted the draft ordinance to the attorney general’s office for another opinion and asked the Citizens Against Toxic Sludge group to provide a lawyer, who can practice in Virginia, to issue another legal opinion on the enforceability and legality of the ordinance.
“Once we get that from the county attorney, the attorney general of the commonwealth of Virginia and the attorney for the CATS group, we’ll take a look at that and see if it’s even something the board can consider,” Laurrell, the county administrator, said. “This is something we do for every ordinance and every contract that’s signed by the county and goes through the board.”
Once the legality of the ordinance is determined, the Board of Supervisors will make a decision about whether to pursue it, Laurrell said.
“We have to make sure it passes legal muster,” he said. “If it’s a question of ambiguity or interpretation, then that’s a different story. That becomes a policy issue.”