County biosolids suit has implications for marijuana regulation

 

November 20, 2014



Wahkiakum County's lawsuit with the state Department of Ecology over the application of biosolids is attracting attention across the state and nation.

National groups are weighing in on the biosolids issues, and counties and municipalities across the state are watching the case to see how it applies to the regulation of marijuana cultivation, processing and sales.

In 2011, Wahkiakum County adopted an ordinance banning the application of Class B biosolids, septage or sewage sludge to any land within the county. The ordinance allows application of Class A biosolids, which have a higher standard of treatment than Class B biosolids or septage.

Ecology sued the county to overturn the ordinance, claiming that it was unconstitutional and usurped the statutory authority the department had received from the legislature to regulate biosolids.

A Cowlitz County superior court ruled in favor of the county, and Ecology appealed to the state Court of Appeals, which, on November, overturned the lower court's ruling.

The suit could be over soon, or it could last another two years or more, said Prosecuting Attorney Dan Bigelow, who represents Wahkiakum County in the suit.

The appeals court decision sends the suit back to the superior court with instructions to memorialize, or make permanent, the reversal and hold in favor of Ecology.

The parties have 30 days in which to petition the state supreme court to review the decision. If the supreme court decides not to hear the case, the appeals court decision stands, and Ecology prevails. If the supreme court takes the case, it could be over two years before the justices hear the case.

The appeals court ruled that the county ordinance was unconstitutional because it usurped the authority which the legislature had given to Ecology to regulate all classes of biosolids.

"The question is how much local government can do when the state legislature has set up massive regulatory framework," Bigelow said.

And a supreme court decision might not be the last word, he added. "Which ever side that is aggrieved will go to the legislature to try to change the law," Bigelow said. "The legislature could cure the issue with one stroke of a pen."

Bigelow added that this is a key issue as local governments try to regulate marijuana cultivation, processing and sales. The City of Fife has gone to court trying to impose stricter regulation than state law provides. Fife, like Wahkiakum County, prevailed in superior court, using arguments that prevailed for Wahkiakum at the superior court level.

Lewis County has filed an amicus curiae brief supporting Wahkiakum, and Pacific is likely to do so, too, Bigelow said.

"Other counties woke up," he said. "They realize that this is about more than just poop. It's about their power to make law."

 

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