Spew #  [012]  --  Warning: a way looong spew follows.  Graphic judicial content.  Parental guidance suggested.  P13, at least.

"In our opinion, Amherst County should take its place with Amelia, Rappahannock, Louisa, and Appomattox as a county willing to do everything reasonable and justified to assert its right to determine how sludge will be disposed of within its borders.  But we emphasize that Amherst's case would be distinguished from the others in that it would be the first time that a county has sued a state in federal court for a determination of whether Dillon's rule is preempted by the Clean Water Act.  Win or lose, that decision is worth far more than $2 per resident."  -- Denis O'Brien & Stephen Martin letter of Sept 8, 2005 to the Amherst County Board of Supervisors.

manna from the mouths of megalomanics

The above quote is the closing shot in a letter Steve Martin and I sent the Amherst County Board of Supervisors in 2005.  Earlier in 2005 the county had received notice that a state application to spread "biosolids" (BS) had been filed -- the first such application for Amherst.  By the time we sent the BoS this BS letter, Amherst had already had two very fiery public meetings on the application, and it was clear to the Board that their constituents were not happy about the thought of Amherst becoming another pay-potty for New Jersey, New York, and Northern Virginia.   

You are not going to believe this, but what we wanted the BoS to do was to sue the Virginia Attorney General, the Virginia Department of Health, and the Chief Justice of the Virginia Supreme Court in US District Court to force them to get off the counties' backs and let the counties themselves decide how they want to handle sludge, which is what the federal Clean Water Act (CWA) says.  If you live in Virginia you are likely thinking that we're either delusional or megalomanic.  (Actually, Steve's the delusional one; I'm the megalomanic.)  And if you know anything about the history of BS litigation in Virginia, you're likely thinking that we're both suicidal -- sue Chief Justice Hassell over sludge? (Ha, ha, ha, ha . . . Steve and I would both end up in Gitmo.)

After all, this is Virginia, sludge capital of the eastern seaboard, possibly the world.  And as the case history related below shows, we've got a "funny" problem with the judges on this issue in Virginia.  But after considerable legal research, Steve and I concluded that the CWA expressly grants to each locality the power to determine how BS is disposed of in that locality, and that power, being granted by federal law, preempts any state law or judicial opinion to the contrary.  I call our theory "reverse preemption theory" or "RPT" -- reverse in the sense that local laws go "backwards" and preempt the state law.  Because the so-called "Dillon Rule" is the legal proposition that the state law trumps local law, I also refer to this theory as "Dillon preemption."  I like "Dillon Preemption" because Matt was one of my favorites as a kid.

Steve and I were hot on this.  I mean we were smokin' like the barrel of Matt's six-shooter on a Dodge City Saturday night.  Our plan was to file a declaratory judgment action in the court of federal judge James P. Jones, asking him to review the CWA and apply it as it is clearly written.  (More on this strategy below, including the reason for getting an opinion from this particular judge.)  We met with the Amherst County attorney, county administrator, and a couple of supervisors and then sent them our conclusions and strategy.  And talking about suicidal, we even offered to prosecute the case.  

The Amherst supervisors declined our offer.  Well, not explicitly -- I mean, they didn't even give us the courtesy of a response.  I ran into one of them at a local gas pump a few weeks later and he admitted that the Amherst supervisors were scared sludgeless by the Appomattox case in which that county got burned by the BSers (see details below).  And it is now clear that Amherst is content to take the safest route possible and let other counties do the heavy lifting on the BS issue.  Fortunately for the citizen's of Amherst, it appears that Mr. Wright, the owner of the land that was going to be BS'd is a lot smarter than Synagro thought -- after attending the public meetings in Amherst two years ago and getting a different perspective on the "free fertilizer" deal and how "safe" the stuff is, Mr. Wright has still not allowed any BS to be spread. 

The Amherst BoSs'  lack of spinal fortitude notwithstanding, there are lots of Virginia county supervisors who are willing to put up a fight rather than sacrifice the health, quality of life, and well-being of their citizens.  Take the supervisors over at Bedford County.  These people are pumped up.  A planning commissioner over there, Steve Stevick said it this way: ". . .as a first order of business Bedford County should clearly state that it is the county's desire that all matters pertaining to the application of sludge/biosolids within Bedford County should be with the purview of the Bedford County."  Well said.  This is basically a statement of Dillon preemption.  Campbell county was getting even more radical -- they considered an ordinance that would allow them to preempt the whole US Constitution and ban corporations from operating inside the county. Link.  Campbell also has a very helpful BS page on their website.  Link.   Link. Surrey County has sued the sludgers for multi-millions to run them out over there. And Rappahannock County is considering what appears to me to be a very strong ordinance to regulate sludge application/storage into oblivion.  (Get it here.)  [I find this link changes, and the last time I checked the ordinance had been watered down considerably.  But one of the most amazing things I've found in writing this spew is that my spell-checker actually recognizes "Rappahannock." ) 

a short, sad case history of bs litigation in virginia, in three acts

As a way of explaining the reverse preemption theory, let me briefly summarize the most important Virginia BS cases.  For non-lawyer ABM (anti-biosolids movement) activists, there is no good, concise, readily available case history of BS litigation in Va., and while what follows may not be that good, and is definitely not concise, at least it's available.  This body of law is confusing at best and annoying at worst because there are strange and mysterious holes in the record where important and obvious points and arguments are totally ignored by the guys in the robes writing the opinions.  And so at times it's a bit difficult to see what the judges were thinking. 

Nevertheless, ABM warriors in Va. should at least be aware of what happened in these cases because these decisions form the body of law that denies the right of each Virginia county to decide for itself whether it will become New Jersey's pay-potty.   And it is against the background of this litigation that counties and their attorneys must decide how or whether to proceed in court.   So if your BoS is like Amherst's and is weak of will with respect to jumping into the BS fray, this case-law is why. 

1994
Act 1, Scene 1.  

The Brown Tide Begins to Recede.  
Welch v. Rappahannock -- US District Court, Charlottesville.

Waugh Crigler, stage left.  
Background music: "Jumpin' Jack Flash"

It's a bad sign when the first case in a body of law is the high point.  In this case a bunch of sludge farmers sued Rappahannock County over an amendment to the County's ordinances that outright banned land application of BS on private land within the county.  They lost.   

After the documents were filed by both sides and there was enough meat for the court to chew on, Rappahannock moved for summary judgment (SJ), which means they argued that there was no real dispute over the facts and, consequently, no need for a trial.  This appears to be the only case in which a county moved for SJ, and that may be significant.  

 In these federal cases, if the parties agree, a magistrate judge, who is sort of like a Tonto to the real judge, can hear and decide motions, hopefully to speed things up some.  Tonto in this case was Magistrate Judge Waugh Crigler, who agreed with the county that SJ was appropriate.  And then he let rip with a very, very strong opinion that upheld the right of counties to ban land application of BS.  [As noted by Crigler, Rappahannock was not banning landfill or incineration of BS, and those methods of disposal were not at issue.  So the county was not banning sludge, per se, just the land application of sludge.]  Crigler read the federal Clean Water Act to say that sludge disposal is a local determination.  Good call Waugh -- because that's exactly what the CWA says:  "The determination of the manner of disposal or use of sludge is a local determination. . ."  33 USC 1345(e) (See more on this below).  

1995
Act 1, Scene 2.  

The Brown Tide in Full Ebb
Welch v. Rappahannock again, still in US District Court, Charlottesville 

Spot dims on Crigler, enter Harry Michael, stage right.  
Background music: "Maxwell's Silver Hammer"

When a magistrate judge decides a SJ motion in federal court, the loser can ask the "real" judge to confirm -- this is sort of an in-house appeal.  Judge Harry Michael was the "real" judge in this case, and he really sunk his teeth into this thing.  First let me tell you that I have personally had some problems with both Michael (now deceased) and Crigler over the years, and although I respect them both immensely, I don't want you to think that I am just another fawning lawyer sucking up to federal judges when I say that  Michael really hammered this BS thing -- even harder than Crigler did.  They both read the federal law to say what it says, and then they applied it.  Although Michael was a politician, he was capable of brilliant insight, and he was often called to sit as a designate judge on the federal court of appeals.  He not only backed-up Crigler 100%, he went further and made it clear in no uncertain terms that 1) under the CWA, how sludge is disposed of is a local determination, and 2) federal law does not preempt a county's right to ban BS, which was the sludgers' argument.  The preemption arguments go both ways and get a bit confusing, so let me pause here to distinguish "forward" preemption from "reverse" before we wade any farther into this preemption swamp.   

The legal theory of preemption derives from the Supremacy Clause of the US Constitution (Art VI, Cl 2) which says that federal law trumps - or preempts - state law.  In most of these BS cases the sludgers argue, as they did in Rappahannock,  that the  EPA promotes the spreading of human feces on farmland, and therefore the federal laws preempt any state or county laws preventing the spreading of human feces on farmland.   As we'll see, this is also what the O'Brien (no relation to me, genetically, philosophically, or spiritually) sludgers argued in O'Brien v. Appomattox County.  This argument amounts to what might be called "forward" or "top-down" preemption, as in  federal law trumps state law and local law, state law trumps local law, local law doesn't trump anything.   

But the fine (and fatal) point is that the sludgers' preemption theory is not based on federal law --  it's based on federal (EPA) regulations, which clearly do favor land-application of BS.  So when the sludgers in Rappahannock argued federal preemption of local rights, they were really arguing that the EPA rules preempted the Rappahannock ordinance.   And while, generally, federal regulations do have "the effect of law" they cannot be used to stiff a federal law.  

Judge Michael's response to the BSers' "straight" preemption theory was, essentially "horse-poop" -- the EPA is just an agency and its regulations do not preempt the county's right to ban BS because federal law -- the CWA -- gives the county that right.  Michael turned the sludgers preemption argument against them.  He saw clearly that the CWA does not promote land application of BS -- that is just a preference of an agency (and a crooked agency at that, but Michael didn't get into that).  The CWA clearly states that localities determine how BS is disposed of.  End of story, which pretty well meant the end of the Synagro BS operations in Rappahannock County -- at least for the last 12 years.  I don't know what the Rappahannock lawyers were paid to fight that fight, but that outcome was worth 10 times whatever they were paid.

A couple of things fascinate me about the Rappahannock case, particularly in light of the next decade of litigation.  First, the sludgers didn't appeal Michael's decision to the federal court of appeals.  This was not for lack of funding, you can be sure.  There was a strategic reason that is not perfectly clear to me, but it was likely that losing in the federal court of appeals would have huge regional repercussions that would go well beyond Rappahannock County or even Virginia.

The second fascinating point about Rappahannock is that there was no Dillon Rule argument -- or at least the Dillon Rule was not discussed in Crigler's or Michael's opinions, which totally ignore the state and just focus on the relationship between the federal law and local law.  So technically, this is not a "reverse preemption" case because it doesn't establish that the CWA empowers the counties to preempt state law.  The absence of any mention in Crigler's or Michael's opinion of a single state law or court ruling is weird because the State plays a huge role in this whole mess.  I mean, the Dept. of Health has been in bed with the sludgers for 15 years and has been promoting BS land application as enthusiastically as the EPA.  But there is symmetry here because none of the state court or federal opinions that followed -- all based on Dillon --  ever referred to the Rappahannock case.  

Six years after Rappahannock, Dillon raised its ugly head. 

2001
Act II, Scene 1.  

The Brown Tide Turns
Blanton v. Amelia County -- Va. Supreme Court, Richmond

Leroy Rountree Hassell, enter from above.   
Background music: "Hullo Mudda; Hullo Fadda"

Having been shut down in Rappahannock County, the BSers started looking around for other counties they could use as an outhouse.  They found a two-holer in Amelia and Louisa counties, and they immediately began sludging those folks big-time.

After a number of public hearings in which the public made it very clear how they felt, Amelia took the same route as Rappahannock and passed ordinances banning land application of BS outright. A ban -- that's very important to note.  Both Amelia and Rappahannock banned land application of BS instead of trying to regulate it out of existence.  

Now, one would think that in view of Welch v. Rappahannock Amelia would have a very strong case.  After all, Crigler and Michael both read the CWA and concluded that counties can ban land application of BS because the CWA says "the determination of the manner of disposal or use of sludge is a local determination."  Surely the Amelia case would be an instant-replay of Rappahannock.  Deja vu all over.  Slam-dunk.

Not soooo fast.  This time the sludgers sued the county in state court, and they brought state law into the fight, arguing that Amelia's BS ban was in contradiction with the state's BS laws.  They argued Dillon, in other words.

Now, the Dillon Rule is not about BS, per se, nor was it written by my guy, Matt Dillon.  It comes from a 1872 treatise called "Municipal Corporations" by John Forrest Dillon, an Iowa judge.  The Rule has been used in hundreds of court decisions to uphold the assertion of state power over cities and counties.  It got a huge boost in 1907 when the US Supreme Court used the Rule to make the point that a state has so much power over localities that it can even abolish a city if it wants to -- just like the Galactic Empire did to the planet Alderan in one of those Jedi flicks.   The Dillon Rule is essentially a "Galactic Empire Muscle Clause"  that continues the top-down preemption scheme from state to local level.  Not all states apply it.

In Virginia, the Dillon Rule is actually embedded in the state's statutes as §1-13.17, which says that the local laws ". . .must not be inconsistent with the [US] Constitution and laws of the United States or of this Commonwealth."  Please note the "or" -- it's huge, and it probably renders this statute unconstitutional in view of the Supremacy Clause.  Because what if a local law follows federal law, but is not consistent with Va. law?  The state could use the "or" to cancel the local law anyway and thereby preempt the federal law, and that's exactly what Va. is doing to the CWA.  Read on. . .    

Now returning to Amelia County, I don't have a record of what transpired in the Blanton v. Amelia trial, in which Judge Thomas V. Warren presided.  We know that the Blanton sludgers sued Amelia on the grounds that Amelia's ban of land application was inconsistent with the state BS laws and regulations and was, therefore, illegal under §1-13.17, e.g. the Dillon Rule.

The logical response for the county would have been to say:  "Yeah, all that Dillon yada-yada might be right, but the federal CWA trumps the state BS laws, and, as Crigler and Michael clearly stated, the CWA gives Amelia the right to ban land application of BS."  In other words, the county's laws now trump the state laws because the federal law says so.  Reverse preemption.  Dillon preemption.  

Did Amelia's lawyers argue that point in the trial court?  Did they raise the Rappahannock case?  I don't really know because the record is not available online, but they must have because 1) it is such an obvious point and 2) Judge Warren found for the county and upheld Amelia's ban.  He was the third judge to rule that a county could ban land application of sludge.  Three in a row, in fact.  Three strikes is an out where I grew up, but fortunately I didn't grow up in Amelia County.  The sludgers appealed Warren's decision to the Virginia Supreme Court.

It is precisely at this point that the BS story in Virginia really starts to suck.  And like when the house dropped on Dorothy's head or when Alice stepped through the mirror, everything begins to get a little funny. This is the precise point at which the whole BS issue started going south in Virginia, both figuratively and geographically.  

In a nutshell, the Supreme Court reversed Judge Warren and found the Amelia BS ban to be contrary to the state BS laws.  Leroy Rountree Hassell was the Va. Supreme Court justice (now a much admired Va. Chief Justice) who wrote the opinion on the Amelia case -- it was a 100% Dillon Rule argument.  Technically, if you apply just the Dillon Rule and ignore all that Clean Water Act mumbo-jumbo (after all, it's only federal law), then the Amelia opinion makes sense.  

But something stinks here (that's the name of the web site, remember?), and I don't mean just the BS.  What is really worrying in Hassell's opinion is that in writing appeals opinions, or any opinions, judges and justices try to present each side's arguments in a balanced way and then explain why one side's arguments are the most persuasive.  Justices are duty bound to do this so that the world can see that they worked through the legal and factual issues in a way that was fair to both sides.  But Hassell gives Amelia's arguments extremely short shrift.  Nowhere does he once mention federal law in general, or the CWA specifically, or the Supremacy Clause, or the Rappahannock case, or Crigler's opinion, or Michael's opinion, or the county's federally protected right to ban land application of BS.  He hardly mentions Amelia's position at all.  

A law commentator reviewing this case would say, well, obviously Amelia's lawyers never raised those points.  Poppycock.  I do not have access to the briefs in this appeal, but I know that all of these arguments must have been presented to the Supreme Court because Rappahannock County and the Local Government Attorneys of Virginia, Inc. filed amci briefs with the Supreme Court.  These are a bunch of smart dudes, and there is no way they -- particularly the Rappahannock attorneys -- would omit the one killer argument for banning sludge.  Assuming the federal law arguments were presented, why did Hassell bury those arguments by ignoring them in the opinion?  This is not the last time this question will surface.  

2001
Act II, Scene II 

The Brown Tide Rushes Back In
Synagro v Louisa County -- US District Court, Charlottesville

Harry Michael, no entry -- voice only, distant and cryptic.   
Background music: "Purple Haze"

The Amelia Supreme Court opinion came out in January of 2001.  By June Synagro had smelled the blood in the water and was in Michael's court in Charlottesville trying to block Louisa County from regulating BS.  Synagro had been particularly brutal in sludging Louisa county, as C.W. Williams will amply testify, and so the Louisa BoS passed an ordinance in an attempt to control the mess and calm the citizens down -- it was obvious by then that the Department of Health wasn't doing anything and wasn't likely to do anything, never mind that people were getting sick.

OK, now here is the most important point in this whole rambling spew -- Louisa didn't outright ban BS land application like Rappahannock and Amelia did.  Louisa tried to regulate the land application of BS.  This is a regulation case, and that is a huge distinction, as we will see.  Louisa just wanted the BS'ers to file a nutrient management plan, post warning signs 30 days in advance, obey setbacks and buffers, take a break when the 4th of July parade was in progress, and post a bond to insure the BS that was being spilled on the roadways would be cleaned up.  All of these are incredibly reasonable requirements to anybody with half a brain, but unfortunately all of the brains in the VDH combined don't total quite a half.  The VDH had no such requirements -- which was the BS'er's whole point.  If the VDH doesn't care a whop about cleaning up the BS off the roads, then the county just has to eat it.   Dillon, Dillon, Dillon.  Judge Michael bought this argument and the BS'ers won their second round in 6 months

Synagro sued Louisa and then immediately sought a preliminary injunction -- meaning they wanted Michael to let them keep slinging BS in spite of Louisa's ordinance and growing health complaints until the whole case could be heard and decided.  Injunctions like this are not easy to get, particularly in federal court.  The plaintiff has to meet 4 criteria, one of which is that the plaintiff has to convince the judge that he is likely to win at trial.  This means the preliminary injunction is sort of the whole case tried in miniature.   

Michael gave Synagro their injunction, saying that Synagro would probably win the case, so why hold them up?  Oddly, Michael did not once refer to his own decision in Rappahannock, not even to explain how this BS case was different.  So let me try to explain how I think the cases differed.  

Louisa was different from Rappahannock first of all because this case, like Amelia, was decided pretty much strictly on state law, meaning the Dillon Rule, and Michael referred to the Amelia decision with favor.  This time he completely ignored the CWA, and he completely ignored Rappahannock and the Supremacy Clause.  This case was also different from Rappahannock because Louisa was not banning land application of sludge; it was regulating land application.   

We don't know what points Louisa argued to Michael.  Unlike Crigler's and Michael's opinions in Rappahannock, this case is not published in bound law reports like the ones you see behind the smarmy lawyers doing the TV ads.  You have to go to the court's website to dig Michael's opinion out.  But even then, one can't tell whether the lawyers for Louisa raised Rappahannock and CWA issues or not.   But even if they did raise the CWA issue, I think Michael probably got this right, even if he didn't fully explain himself.

Steve Martin, after banging me on the head a couple times, convinced me that the "local determination" clause of the CWA [33 USC 1345(e)] means exactly what it says:  the determination of the manner of disposing BS is a local determination.  Steve pointed out that "the manner of disposing" means the initial choice as to which of three ways BS will be handled: land application, incineration, or land fill.  (Today there are additional options, but back in 2005 when Steve was banging me on the head this was about it.)  That is all the CWA empowers the county to determine -- which way will be used to dispose of BS.  Once that choice is made, then the state and federal regulations kick in to regulate the process.  Recall that Rappahannock County banned land application, but they allowed landfill and incineration -- and Michael commented on that. So Rappahannock did what the CWA allows them to do -- they determined the "manner" in which BS is handled.  They banned land application, but they didn't regulate it.  

But -- and here's the kicker -- if the county does not outright ban land application, then the CWA "local determination" clause doesn't apply and the Dillon Rule kicks back in so the county must follow the state regulations.  Consequently, reverse preemption only applies to those counties that actually ban land application because it is only those counties that have made a "local determination of the manner of disposal" under section 1345(e).  In other words, a local ordinance banning land application preempts state law (and the Dillon Rule) because that ordinance is protected by the CWA.  But a local law that tries to regulate land application runs afoul of state law and has no support from the CWA.  This is, I believe, the logic Michael was using to rule against Louisa.  It is the only logic I can see that allows Michael's Rappahannock and Louisa decisions to make any sense when laid next to each other.     

So Michael gave Synagro their preliminary injunction against Louisa.  And that is, apparently, where the case ended.  I don't see any record of the main case being litigated, or appealed.  You know, when a federal judge gives the other guy his preliminary injunction, the judge is basically telling you that you probably don't have a gnat's chance of winning.  At that point most folks just fold their cards and go on home.  I guess that's what happened to Louisa, but I haven't examined the courthouse file, yet.  If you know what happened, drop me a note. (denis@thepatentguy.net)  

2002
Act III, Scene I 

The Brown Tsunami Spreads Across Rural Virginia
O'Brien (No relation.  Really!) v Appomattox County -- US District Court, Lynchburg

Enter: Judge Norman Moon, rising from the orchestra pit, wearing a Synagro baseball hat.   
Background music: "The Good, the Bad, and the Ugly" theme song

(As always) I'm going to be absolutely straight up with you on this case.  When I first read it I thought to myself, "Yep, ole' Norm's not too far off on this one.  A little over the top on the sanctions, but I can basically see where he's coming from."  But then again, I read this case before I read the CWA, and apparently before Judge Moon read the CWA, too.

The BS'ers came out with six-guns blazin' in this case. Probably supported by uber-BS companies Synagro and NutriBlend, Tommy O'Brien (no relation) and his band of 10 fellow sludge-slingers hired J. B. Slaughter of the D.C. firm Beveridge & Diamond.  The case was filed in the last week of June, 2002, and by the first week in August, 2002, it was practically all over.  By the first week in November, 2002, it was definitely over.  Four months start to end -- that's near the speed of light in litigation.

Appomattox, unlike Louisa, saw the BS coming and tried to head it off at the pasture.  Even before the BS hit the dirt, the Appomattox BoS passed a couple of local laws to regulate land application of BS -- laws that were a lot stricter than Louisa's.  In fact, as Judge Moon observed, Appomattox's laws were so BS-hostile as to amount to a ban on land application.  To my way of thinking, it's too bad Apomtx didn't just say "Get that crap out of here!!" and ban land application outright.  But somebody over there thought it would be better to try and do an end-run and effectively ban the stuff by regulating it into oblivion.  Judge Moon was not impressed.

Sludge-lawyer Slaughter wanted this thing tried in federal court for a couple of reasons.  First of all, he had a slam dunk and he knew it.  At the time he filed this case, the ink hadn't dried on Michael's pro-BS decision in Louisa, and this case was almost identical -- a county trying to regulate BS.  Second, if he won (which was almost certain) and Apomtx appealed to the 4th Circuit, a win there would effectively spread the BS happy news throughout the entire 4th circuit -- all the way from S. Carolina to Maryland.  

But in order to get this case into federal court, Slaughter had to do a tap dance because all of the defendants were from Virginia.  If the defendant comes from one state and the plaintiff from a different state, you can go federal on a diversity of citizenship deal.  That's the way Synagro got into federal court in the Louisa case.  But Slaughter didn't have that option so he had to find a federal law question in order to open the federal courtroom's door.  (He also made the case a bit more interesting by asking for $820,000 in damages, which appeared to me to be a very bold tactic since a lawyer can get into trouble for signing a document he knows not to be true.  My sources tell me that at best a farmer saves a few thousand dollars by getting "free" fertilizer.  Eleven sludgers times $5000 comes way short of $820,000 by my calculator.  Was the BS going to boost their crop by $770,000?)  

The way Slaughter got his case into federal court was to charge that the federal CWA preempts the Apomtx local laws.  Same dumb argument Michael roundly rejected in the Rappahannock case.  But Slaughter didn't need to win on the federal count, he just needed it to open the federal courthouse door.  Of course once you are in the federal court you can raise issues of state law, and Slaughter's case was essentially counts based on the Dillon Rule.  In fact, Moon ended up ignoring all the federal huff and decided the case strictly on state law -- a.k.a. Dillon Rule.  

As in Louisa, as soon as the curtain went up on this case, the BSers filed for a preliminary injunction.  They wanted to spread their BS while the litigation was going on, and the injunction was to keep the county from busting them if they did. Yeah, it was instant-replay Louisa.  Moon gave the BSers their injunction, and in so doing pointed out that Apomtx didn't have a hope in hell of winning the thing.  Actually, Moon's opinion on the preliminary injunction reads like a PR brochure for Synagro.  Try this:

"Thus, many in the scientific community, insist that there are no cognizable dangers to the public, so long as sludge is properly treated before application . . . [t]hus, the long term benefits from the use of biosolids include more productive fields and less reliance on chemical fertilizers."  Norman K Moon, O'Brien v. Appomattox 213 F. Supp 2d 627 (2002) 

OK, judge, if you say so.  But what about mentioning, just for some objective balance, that there are many researchers, including at least one from the EPA,  who have concluded land application is an environmental and public health disaster?  Judge Moon granted the sludge farmers their preliminary injunction, thus signaling that the county was likely to lose the case.   

One thing you gotta' say about Appomattox is that they fought like a cat caught in a flushed toilet on this one.   They appealed the preliminary injunction to the 4th Circuit Court of Appeals, but the 4CA stamped the injunction "Approved," stating, almost an aside, that Appomattox was not likely to win.  Before the 4CA could rule on the injunction, Apmotx. went back to Moon and got down on their knees and begged him to lift the injunction.  Moon just sneered at them. 

OK.  I think the whole idea of trying to regulate BS into oblivion was a real bad one, particularly after the Louisa case, but you gotta' admire Apmotx for their persistence.    

Slaughter, of course, knew he had the county by the jugular and immediately filed a motion for summary judgment.  No sense going to a jury on this one, he argued, it's a done deal.  Moon agreed.  Moon simply reiterated the Synagro brochure again and held that the Appomattox ordinances were contrary to the VDH regs, therefore the Dillon Rule rules.   Slam, bam, thank ya', mam -- this thing was over 5 months after it was filed!  5 months!  I've waited for a Big Mac longer than that!  The US District Court for the Eastern District of Virginia over in Alexandria has a notorious nationwide reputation of running a "rocket-docket," but Norman Moon ain't no slug when it comes to sludge.  As soon as he had his summary judgment in hand, Slaughter moved the court for attorney fees.  I don't know how much he asked for, but Appomattox settled for $225,000.  

Now, this settlement is interesting because there is a story floating around that Moon sanctioned Appomattox $800,000 -- not true.  It's clear from the record that Slaughter asked for $820,000 in damages when he filed the suit, but I can see no evidence in the record that Moon gave the BSers a nickel.  So far as I can see, the only money that changed hands was via the settlement.  Nevertheless, the $800,000 myth has had a major effect in scaring other counties, like Amherst and Campbell, away from taking on the Synagro-funded BS-farmers. 

I bought into the $800k sanctions myth, too.  But when I went to look for Judge Moon's order awarding the sanctions, I found nothing.  Then again, I can't see the all fo the court records.  I am writing this piece from Vancouver, B.C. and the only access I have to the court's files is the online system that grants access to lawyers who are admitted to the federal courts.  But the docs in the Aptomx. case have not been digitized, so you can see the titles but not the whole document.  Only Moon's opinion and final order are visible, and neither one says anything about sanctions.  Furthermore, Slaughter told a national BS news rag called WaterWorld that Appomattox settled for $225,000. If he had won $800,000 in sanctions, he would have crowed about that, for sure.  He seems to see himself as the William Kunstler of sludge.

OK, so how does O'Brien (no relation, honest) v. Appomattox square with my Reverse Preemption Theory?  It doesn't.  It's neutral on the issue because the RPT is based on the scenario where a county bans land application of BS.  So this case is not a test of the theory.  In fact, Moon ignored the CWA.  

I was able to get my hands on the briefs filed by the Appomattox lawyers, and I know that they put the CWA act in Jundge Moon's face and said, "Look at this, judge, the CWA says the county determines how sludge is handled."   Of course, Appomattox had it mostly wrong -- the CWA doesn't give counties the power to regulate land application, just ban it, which Appomattox didn't do.  But Judge Moon never made that point.  Just like Hassell in the Amelia case and Michael in Louisa, Moon's opinion completely ignores the federal preemption argument.  Nada, nichts, not a word. 

So you've got a federal law saying the county determines how BS is to be handled, you've got the county lawyers putting the federal law in the federal judge's face, you've got the judge looking at the federal law, which is, at the very least, relevant, and you've got the judge's opinion that ignores the whole argument.  It seems to me that the judge has an obligation to explain why he chose to ignore the federal law arguments that Appomattox presented.  His failure to do so is puzzling. 

2009
Curtain Call -- A Plan

 James P. Jones, center stage, shelved law books background, single spot 
Background music: "Somewhere Over the Rainbow"

So, OK, listen up.  Here's the plan. . . the suicidal one I was talking about at the beginning. 

But before the plan, let me say, since we're talkin' suicide here, that I really am worried about Rappahannock's proposed new sludge ordinance regulating land application because, even under the new Va. state laws, it still looks to me like they are begging an Appomattox situation.  It would be better to take this bull by the horns and completely ban land application, like they did originally -- and like Crigler, Michael, and Warren all ruled was permissible.  If they're going to invite litigation, they ought to write an ordinance banning land application of BS, and reference the Section 1345(e) of the CWA in the ordinance.  

The strategic problem the counties face is that they need a way to get into federal court without waiting for the BSers to drag them into court.  The county wants to be the plaintiff because the plaintiff controls the litigation, controls whether the case is in state or federal court, and controls the legal issues.  

What we (and by "we" I mean sludge warriors and some county willing to take on Synagro) have to do is take that CWA -- section 33 USC 1345(e) that says the determination of how BS is handled is a local one -- and just ram it right down some federal judge's throat until he has to take notice and focus on it.  But ram it down his throat in a nice way.  And in a way that cuts Synagro and NutriBlend and their heavy guns out of the litigation.  And in a way that prevents the judge from making the county pay the other side's legal fees if he gets pissed off.  And in a way that makes the county the plaintiff.  In other words, you have to take on the sludgers by keeping them out of the litigation.

And the way to meet all those strategic criteria is not to sue Synagro or a bunch of sludge-farmers, and it's certainly not by passing an ordinance and waiting to be sued, like Louisa and Appomattox did.  The way to do it is for a county to first write an ordinance banning land application and, before they pass it, file a declaratory judgment suit in federal court against Virginia -- against the Attorney General, against Supreme Court Justice Hassell, and against the VDH (assuming VDH regulations are still in effect).  A declaratory judgment is where you're not looking for any money or damages etc., but you have good reason to believe that you're about to get sued and you're asking the judge to look at the whole situation and determine who's in the right.  

You sue the Virginia AG because he has issued conflicting opinions as to whether the Dillon Rule prevents the counties from making the BS-call.  You bring Justice Hassell into it his Amelia decision, by which the state is contradicting federal law.  And, of course, you bring in whatever state agency is in charge of enforcing state regulations that the AG and the Supreme Court say prevent counties from calling the shots.   And you make it a one-issue law suit so the judge can't dodge it.  You say, "Look here, your honor, this federal law says the determination of how to handle BS is a local determination, and that trumps Justice Hassell and all his state law baloney, and it trumps the Attorney General opinion baloney, and this Dillon baloney, and Amelia and all these other court decisions", but don't say "baloney."  And at the very least you force the judge to make a public idiot of himself if he says the CWA doesn't say what it obviously does say.  Are you with me, so far?  Too bad, I'm moving on anyway.  I'm on a roll here.

I know what you're thinking: Has any judge ever ruled that a federal law allows a local law to trump the state?  Is there any case law to back up this RPT stuff?   Sure, do you think I would drag you all the way through this spew if there wasn't??  There's a great case right in Va. that sets the stage for this Anti-BS Litigation Plan.  That case is Bristol (as in the city of)  v. Earley (as in Attorney General Mark Earley).   This is a federal case heard by Judge James Jones, who, I believe, is now sitting in Charlottesville.  This case has nothing to do with BS, or misinformed farmers, or even dirt.  It's about telecommunications.  But it's a huge case for RPT for at least 3 reasons.  

First of all, the Bristol case was brought by a local government (the city of Bristol, Va) against the state so it cuts the industry and their big bucks out of the litigation (although they forced their way in anyway).  Second, it's a declaratory judgment case, which is just what we want to do.  Third -- and this is the best part -- the suit is asking the judge to rule that a federal law that gives a locality a right preempts a state law taking that right away.   Whoa!!   

Bristol wanted to enter the cell phone business, but a state law says local governments can't compete in telecommunications, and Earley, the Virginia Attorney General, shut Bristol down by applying Dillon.  Been there; heard that.  But Bristol said,  "Hold on, the Federal Telecommunications Act of 1996 says no state may prohibit any entity from providing interstate or intrastate phone service, and we're an entity."  Their argument was that federal Telecommunications Act preempts the state law and Dillon, and therefore the local government preempts the state law on the telecommunications issue.  That's what the city said, but what did Jones say?  After all, it's his opinion.   Here is his opening volley:

"In this suit by a municipality seeking a declaratory judgment that a Virginia statute is preempted by the federal Telecommunications Act of 1996, I grant summary judgment in favor of the plaintiff [Bristol] and declare the Virginia statute unenforceable under the Supremacy Clause of the Constitution."  Bristol v. Earley 145 F. Supp. 2d 741 (2001).

This is a fairly complex opinion, but it is brilliant.  Jones slices right through all of the state's arguments and cuts the legs right out from under them, leaving little doubt that if a federal law gives a locality the right to do something, the state cannot take that right away.  So, applying Jones' opinion to BS, the CWA gives the county the right to determine how BS is to be handled within the county's boundaries, therefore the state can't step in and take that right away.  

In 2004, in the case Nixon v. Missouri Municipal League, the US Supreme Court had a look at the exact same issues Judge Jones addressed in the Bristol case -- whether the federal Telecommunications Act can be used by localities to preempt state law banning local entities from entering the telecommunications market.  The USSCt say no, the state law cannot be preempted by local entities on the basis of the Telecommunications Act.  But the primary argument was that the Telecommunications Act refers to "any entity" as being able to preempt state law, and, according to the USSCt majority, "any entity" does not include local governmental entities.  The Court reasoned that if Congress had meant to include local governments in the Telecommunications Act, Congress would have said so explicitly.  

At first glance Nixon doesn't sound good for the RPT, but note that, unlike the Telecommunications Act, the Clean Water Act, does explicitly refer to local entities.  There is no doubt that in the CWA Congress was addressing what the local entities can or can't do -- they can determine how sludge is disposed of.  In fact, the CWA says that ONLY local entities can make that decision.  From this point of view, the Nixon case would appear to support reverse preemption.

The problem in getting counties to take action to protect their right is perception.  Virginia counties are running scared because they think Appomattox County was sanctioned $800,000 for trying to shut down land application of BS.  And they think that if they can't regulate BS application, then they certainly can't ban it.  Consequently, they are afraid to go to federal court and assert their right under the CWA to determine how BS is disposed of in their county.  Until some county BoS sees that there is a difference between regulating BS and banning it and that the CWA allows the county to do the later but not the former, Synagro will just continue spreading BS across the whole state with impunity and the quality of people's lives will continue to suffer -- and many people's health will suffer -- so that a few farmers can get a few thousands of dollars of free "fertilizer."  What a bummer.

I rest my case.  Finally.