Sludge Watch ==> Virginia - draft ordinance challenges sludge companies' "constitutional' rights

[Maureen Reilly]

Campbell sludge fight hinges on untried theory
By Sarah Watson
swatson at newsadvance.com
Saturday, January 6, 2007


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.”

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