The Significance of the Recent Virginia Supreme Court Decision on Local Ordinances Regulating Land Application of Sewage Sludges

By Ellen Z. Harrison, Director, Cornell Waste Management Institute
March 22, 2001

Local ordinances regulating the land application of sewage sludges have been adopted by municipalities (towns and counties) across the U.S. The powers granted to municipalities by the state in which they are located vary significantly from states like NY with strong "home rule" provisions for municipalities to states like Virginia where municipal powers are limited to those specifically delegated to them by the state.

Municipalities can adopt ordinances that remain in effect unless they are challenged and found by the courts to be invalid. If a law suit is filed to overturn a local ordinance, the basis for the legal challenge and the defense mounted by the municipality are critical to the court's decision. The basis for a law suit can range from a challenge to the procedural methods that were used in adopting the ordinance, to a challenge based on conflict with state law, to one based on the interstate commerce clause.

The relevance of a particular court decision regarding the validity of an ordinance in a particular municipality to land application ordinances in other municipalities depends on many factors. These include the state setting (Is the other municipality in the same state? If not, what are the powers which municipalities have under the laws of that particular state?); the specific language and provisions of the local ordinance (an outright prohibition of land application is different from an ordinance that might provide for additional required testing, for example); the issue raised in the law suit (a challenge to procedural methods of adoption of the ordinance would have little relevance to other municipalities while to a challenge based on interstate commerce clause might have relevance to all municipalities in the US); the robustness of the defense (since often the courts must weigh local responsibilities to protect health and welfare vs. other factors, the persuasiveness of the arguments which the municipality puts forward are important).

A recent paper reviews local ordinances (Harrison, E. Z. and M. M. Eaton, 2001. The Role of Municipalities in Regulating the Land Application of Sewage Sludges and Septage. Nat. Res. J., v. 41, p. 1-47). A significant court decision was made shortly after the article on local ordinances by Harrison and Eaton went to press. A 2001 decision of the Virginia Supreme Court found that the local sludge ban in Amelia County was not legal. This was based on a finding that "a local government, in Virginia, may not 'forbid what the [Virginia] legislature has expressly licensed, authorized, or required.' The General Assembly [of Virginia], by its enactment of Code 0.32.1-164.5, has expressly authorized the land application of biosolids conditioned upon the issuance of a permit." The court did not address in any way any of the safety issues related to land application of sludges or even whether the practice was good or bad; it simply ruled that localities in Virginia do not have the power to ban land application.

This case is important for Virginia municipalities, but is not portable to other states. This decision rests on the fact that Virginia has granted very limited powers to its municipalities. It is thus not relevant to municipalities in other states where municipal powers delegated by the state are different. It is also not clear how a municipal ordinance in Virginia that was not an outright ban, but rather added additional requirements to those of the State, might be treated by the courts.

The assistance of Neal L. Walters, Esq. in preparing this interpretation is greatly appreciated. You can contact him at:
418 East Water Street
P.O. Box 2737
Charlottesville, VA 22902
(804) 296-2161

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