Full opinion text
ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT, PLAINTIFFS’ MOTION TO STRIKE GARY ALLEN FEESS, District Judge. I. INTRODUCTION Plaintiffs City of Los Angeles, Orange County Sanitation District, and County Sanitation District No. 2 of Los Angeles County generate large amounts of sewage treatment residues known as “sludge” or “biosolids,” some substantial portion of which they ship to farmland located in unincorporated areas of Kern County for use as fertilizer. This arrangement has, perhaps predictably, aroused substantial local opposition in Kern County even though the EPA considers land application to be a safe, effective means of recycling biosolids. That opposition reached a fever pitch in 2006 when a local State Senator sponsored a ballot initiative known as Measure E, which sought to ban land application of biosolids in the unincorporated areas of the County. The initiative campaign included colorful attacks on “Los Angeles sludge” and drew on long-simmering anti-Southern California sentiment for support. There being no “Friends of Sludge” to mount opposition to the initiative, the ordinance passed overwhelmingly, and therefore threatened to permanently ban Plaintiffs from further land application at their Kern County facilities. And though the ban may at first impression appear to eliminate all land application of sludge in Kern County, it actually imposes relatively few burdens on in-county interests. Without acknowledging any irony, Kern County ships its materials to a local composting company for sale to private firms out of its jurisdiction. Moreover, local cities continue to apply biosolids on land in their incorporated areas which are outside of Kern County’s jurisdiction. By contrast, Measure E would effectively force Plaintiffs out of the County. In an effort to preserve their biosolids recycling programs, the government Plaintiffs, along with private firms and individuals that handle the material, filed suit against Defendants Kern County and Kern County Board of Supervisors (collectively “Kern”) on a variety of constitutional and statutory grounds. After dismissing some of their claims, City of Los Angeles v. County of Kern, No. CV 06-5094, 2006 WL 3073172 (C.D.Cal. Oct.24, 2006) (“Kern I”), this Court preliminarily enjoined enforcement of Measure E, as it concluded that Plaintiffs, though not likely to succeed on their Equal Protection claim, demonstrated irreparable harm and a likelihood of success on their claims that Measure E(l) violated the dormant Commerce Clause; (2) was preempted by the California Integrated Waste Management Act (“CIWMA”); and (3) exceeded Kerris police power under the California Constitution. City of Los Angeles v. County of Kern, 462 F.Supp.2d 1105 (C.D.Cal.2006) (“Kern II”). Kern has now moved for summary judgment on all claims, and Plaintiffs have filed a cross motion for summary judgment on the CIWMA claim. In their opposition to Kerris motion for summary judgment, Plaintiffs also ask the Court to enter summary judgment in favor of their Commerce Clause and police power claims (though not in favor of their Equal Protection claim). The Court agrees with Kern that Plaintiffs’ Equal Protection claim fails as a matter of law. Measure E rationally furthers legitimate local interests in guarding against potential environmental harm and nuisance associated with biosolids, and Plaintiffs have failed to demonstrate that these purposes were merely pretextual. Although the campaign attacks on “Los Angeles sludge” certainly demonstrated animosity towards the government Plaintiffs, this animosity was directly related to the perceived harm Measure E legitimately sought to redress. In short, Plaintiffs were rationally perceived as polluters, and so a campaign including rhetoric against them does not mean Measure E’s stated environmental purposes were mere pretext for something more nefarious. Moreover, Measure E advanced Kern’s environmental interests by banning the perceived pollutants. Measure E is therefore not irrational, and thus survives scrutiny under the Equal Protection clause. By contrast, Measure E faces stricter scrutiny under the Commerce Clause because of the ban’s discriminatory effects against interstate commerce when viewed County-wide. In short, while the campaign attacks on “Los Angeles sludge” are compatible with Measure E’s apparent legitimate purpose under Equal Protection jurisprudence, the attacks graphically expose Measure E’s objective of removing Plaintiffs’ operations from the County as a whole, which would force them to locate and develop alternate recycling sites, most probably in Arizona. But at the same time that Measure E is forcing Los Angeles and others out of Kern County, it allows in-county sludge producers to continue disposing of their biosolids locally, thus accomplishing its legitimate environmental purpose through impermissible means. This discriminatory effect requires the Court to subject Measure E to strict scrutiny, which it cannot withstand because Kern could easily have guarded against the perceived environmental harm with a more tailored regulation regarding the location quality, and volume of biosolids that could be applied to land. Plaintiffs therefore prevail as a matter of law on their Commerce Clause claim. Also meritorious is Plaintiffs’ CIWMA claim. Plaintiffs present the same argument that the Court accepted in granting the preliminary injunction: that CIWMA expresses a statewide policy of promoting recycling over other disposal methods for “solid waste,” which the statute defines to include biosolids. Therefore, Plaintiffs argue, a ban on land application frustrates this statutory purpose and thus is invalid because of conflict preemption, notwithstanding a savings clause that allows local regulations so long as they do not conflict with the policies expressed by the statute. Though Kern advances a barrage of arguments to the contrary, each is fairly easily rejected. Finally, the Court cannot summarily resolve the police powers cause of action. Kern’s motion against this claim is based solely on arguments that — incorrectly— contend Measure E is exempt from the “regional welfare” doctrine which limits exercises of the police power. On the other hand, Plaintiffs’ motion fails because disputes remain as to the impact of their biosolids operations on the local environment and the impact of Measure E on the surrounding region. However, because the police powers claim would involve significant expense to litigate and because Plaintiffs’ Commerce Clause and CIWMA preemption claims entitle them to all the relief sought, the Court shall grant Plaintiffs’ request for entry of final judgment pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. II. STATEMENT OF FACTS The following facts are undisputed and reflect the Court’s ruling on the parties’ evidentiary objections. A. Overview of Biosolids EPA regulations define “sewage sludge,” also referred to as “biosolids,” as the “solid, semi-solid, or liquid residue generated during the treatment of domestic sewage in a treatment works.” 40 C.F.R. § 503.9(w). Municipalities typically dispose of sewage sludge in one of several ways, one of which is known as “land application.” “Land application” means the spraying, spreading or other placement of biosolids onto the land surface, the injection of biosolids below the surface, or the incorporation of biosolids into the soil. Id. § 503.9(h). In 2003, the EPA estimated that approximately 60 percent of sewage sludge nationwide was treated and applied to farmland; of the remaining 40 percent, 17 percent was buried in landfills, 20 percent was incinerated, and 3 percent was used as landfill or mine reclamation cover. 68 Fed.Reg. 68817 (Dec. 10, 2003). The EPA estimates that sludge is applied to approximately 0.1% of available agricultural land in the United States. (Pis’. Ex. 11 [National Research Council Report: Biosolids Applied to Land: Advancing Standards and Practices, 2002] at 311.) The EPA regulations of biosolids are codified at 40 C.F.R. § 503 and are known commonly as the “Part 503” regulations. Part 503 differentiates between Class A and Class B sewage sludge depending on the concentration of pathogens, disease causing micro-organisms, remaining after treatment. See 40 C.F.R. § 503.32. While Class A sewage sludge is sufficiently treated to essentially ehminate pathogens, Class B sewage sludge is treated only to substantially reduce them. See id. For these reasons, the requirements for, and restrictions placed on, land application of Class B sewage sludge are more stringent than those imposed on Class A sewage sludge. See id. For example, Part 503 requires controls on Class B sites such as restrictions on human access to the farm fields and setbacks from property lines that guarantee safety. See id. § 503.32(b)(5). By contrast, Class A bio-solids have almost no restrictions on human handling, see id. § 503.32(a), and are often bagged for retail sale to home gardeners, (Pis’. Ex. 4 [Page P.I. Deck] ¶ 11). In addition to pathogens, the Part 503 rules also limit the amounts of trace metals that can be found in biosolids at the parts per million level. 40 C.F.R. § 503.13. Biosolids that are sufficiently low in metals qualify as “Exceptional Quality” (“EQ”), and the EPA allows wider use of such biosolids. B. Land Application in General The collection and treatment of waste-water, and the resulting generation of bio-solids that must be recycled or disposed of, is a “constant, non-discretionary governmental function.” (Defs’. Separate Statement of Undisputed Material Facts in Opp. to Pis’. Mot. (“DOSSUF”) ¶ 10.) In other words, government agencies cannot decide to stop producing biosolids and instead must find ways to manage those that are produced. (Pis’. Ex. 18 [Bahr P.I. Deck] ¶ 11.) Government agencies generally regard land application to be the best way to manage the material. The parties agree that land application constitutes a “beneficial use” of biosolids, and indeed the EPA explains that it adopted the term “bioso-lids” so as “to emphasize the beneficial nature of this valuable, recyclable resource (i.e., the use of the nutrients and organic matter in biosolids as a fertilizer or soil condition).” (Minamide Deck ¶ 6, Ex. A [“A Guide to Biosolids Risk Assessments for the EPA Part 503 Rule”].) The EPA has also stated that “[b]eneficial use of biosolids reclaims a wastewater residual, converting it into a resource that is recycled to land.” (Id. ¶ 7, Ex. B [“A Plain English Guide to the EPA Part 503 Bioso-lids Rule”].) The EPA therefore promotes land application. (Defs’. Ex. 13 [2000 EPA Audit Report: Biosolids Management and Enforcement] at ii.) At the same time, the EPA has consistently recognized at least the potential that biosolids could be dangerous. The preamble to the Part 503 regulations, which were published in 1993, acknowledges that they “may not regulate all pollutants in sewage sludge that may be present in concentrations that adversely affect public health and the environment.” 58 F.R. 9248-01. The- preamble also acknowledges uncertainties in several important aspects of the risk assessment on which the Part 503 regulations are based, including uncertainties concerning the impacts of land application of biosolids on human health, plant toxicity, wildlife, and ground water. Id. In light of these uncertainties, the EPA called for further research. In 1996, the EPA asked the National Academy of Sciences to study the safety and practicality of using biosolids in human food crop production. The resulting report concluded that land application presented negligible risk to humans and the environment and also provided many benefits. (Pls’. Ex. 10 [1996 Report: Use of Reclaimed Water and Sludge in Food Crop Production] at 305.) The committee that authored the report also noted that there had been no reported outbreaks of infectious disease associated with a population’s exposure to adequately treated biosolids. (Page Decl. ¶ 14.) According to the chair of the 1996 committee, this observation remains accurate. (Id.) Research on biosolids continued. In 2002, the EPA asked the National Research Council (“NRC”) of the National Academy of Sciences to evaluate the Part 503 regulations by evaluating the technical methods and approaches used to establish chemical and pathogen standards for bio-solids, focusing specifically on human health protection (and not ecological or agricultural issues) The NRC found: There is no documented scientific evidence that the Part 503 rule has failed to protect public health. However, additional scientific work is needed to reduce persistent uncertainty about the potential for adverse human health effects from exposure to biosolids. There have been anecdotal allegations of disease, and many scientific advances have occurred since the Part 503 rule was promulgated. To assure the public and to protect public health, there is a critical need to update the scientific basis of the rule to (1) ensure that the chemical and pathogen standards are supported by Current scientific data and risk-assessment methods, (2) demonstrate effective enforcement of the Part 503 rule, and (3) validate the effectiveness of biosolids-management practices. (Defs’. Ex. 12 [2002 NRC Report: Bioso-lids Applied to Land] at 4.) With respect to health effects, the NRC study stated that “[t]oxic chemicals, infectious organisms, and endotoxins or cellular material may all be present in biosolids” and “[t]here are anecdotal reports attributing adverse health effects to biosolids exposures, ranging from relatively mild irritant and allergic reactions to severe and chronic health outcomes.” (Id. at 5.) The NRC study further stated that although “a causal association between bio-solids exposures and adverse health outcomes has not been documented ... [t]o date, epidemiological studies have not been conducted on exposed populations, such as biosolids appliers, farmers who use bioso-lids on their fields, and communities near land-application sites.” (Id. at 121-22.) Because of the anecdotal reports of adverse health effects, the public concerns, and the lack of epidemiological investigation, the study concluded that EPA should conduct further research that examine exposure and potential health risks to worker and residential populations. (Id.) Further research has since occurred, but as yet has uncovered nothing that would change the EPA’s conclusion that land application in compliance with the Part 503 regulations is safe. (Pls’. Ex. 7 [Pepper. Suppl. P.I. Deck] ¶ 7.) C. The Parties and Their Biosolids Operations 1.Plaintiffs a. The City of Los Angeles Operation Plaintiff City of Los Angeles (“the City”) has been land applying biosolids in Kern County since 1994. (DOSSUF ¶ 1.) The City collects wastewater generated by residential, commercial, and industrial users in Los Angeles and surrounding communities, and then treats this wastewater at its Hyperion, Terminal Island, Glendale, and Tillman treatment and water reclamation plants. The wastewater treatment process generates solid residuals, which are then further treated and eventually reconstituted into biosolids at the City’s Hyperion and Terminal Island plants. (Id. ¶ 2.) The City then sends its biosolids to a site known as “Green Acres” in the unincorporated area of Kern County, which it purchased in 1999 for $15 million. (Pls’. Ex. 1 [Minamide P.I. Decl.] ¶ 7.) The site is a 4,700-acre piece of land about 15 miles southwest of Bakersfield and about 120 miles north of Los Angeles, and is a functioning farm that mainly grows crops used for animal feed. (Id. ¶¶ 7, 20, 28, 27; Johnson Deck ¶ 7.) The Green Acres bioso-lids program is administered by Plaintiff Responsible Biosolids Management, Inc. (“RBM”), which has been under contract with the City since 1996. (Pis’. Ex. 2 [Stockton P.I. Deck] ¶ 8.) RBM subcontracts some amount of the hauling responsibilities to Plaintiff Sierra Transport, Inc., which involves approximately 26 tractor trailer loads of biosolids a day. (Pls’. Ex. 2 [Stockton P.I. Deck] at 14.) Plaintiff R & G Fanucchi, Inc. performs the farming at Green Acres and has contracted with Los Angeles since 2003 to land apply a minimum of 200,000 tons of biosolids there each year. (Pis’. Ex. 20 [Fanucchi P.I. Deck] ¶ 3.) All biosolids applied to land at Green Acres are Class A EQ. (Pls’. Ex. 1 [Minamide P.I. Deck] ¶ 7.) Green Acres has been described by one expert as “one of the best monitored and professionally operated land application sites.” (Pis’. Ex. 4 [Gerba P.I. Deck] ¶ 10.) In addition, the Green Acres site is particularly well-suited for land application because its soil contains multiple layers of silt known as hardpan. The hardpan helps to protect groundwater, which, beneath Green Acres, is extremely deep below the surface. (Pls’. Ex. 2 [Stockton P.I. Deck] ¶ 32.) Further, Green Acres is easily accessible by nearby highways, including Interstate 5 and California Highway 119. (Pls’. Ex. 2 [Stockton P.I. Deck] ¶32.) Land use in the vicinity of Green Acres is predominantly agricultural, consisting of range land, dairies, and irrigated row crops. Oil fields are also nearby, and there are no adjacent residences. (Pls’. Ex. 3 [Johnson P.I. Deck] ¶ 8; Pls’. Ex. 5 [Gerba P.I. Deck] ¶ 10.) Experts have opined that the biosolids operation at Green Acres presents no threat to the environment that is discernable — at least based on current science. (Pls’. Ex. 3 [Johnson P.I. Deck] ¶ 18; Pis’. Ex. 6 [Pepper P.I. Deck] ¶ 8.) Though remote, Green Acres impacts negatively on certain activities. It emanates strong odors and attracts an unusual amount of flies — conditions which can be observed en route to and at the nearby Buena Vista Aquatic Recreation Area, making water-skiing there less enjoyable (Frantz Deck ¶¶ 17, 19.) Green Acres also lies adjacent to the Kern Water Bank, which sits atop an underground aquifer used to store water for extraction during dry years. (Defsk Ex. 41 [Parker Deck] ¶¶ 2, 8.) Particularly when water is extracted during dry years, groundwater levels can drop rapidly, potentially causing groundwater from under Green Acres to move into the aquifer. (Id. ¶ 9.) The same is true for the Arvin-Edison aquifer, which is twelve miles from Green Acres. (Defsk Ex. 40[Collup Deck] ¶ 12.) Notably, however, the record contains no evidence that the groundwater beneath Green Acres has been contaminated, and indeed results of groundwater monitoring and sampling data from the region since 1975 indicate no significant impacts to groundwater quality resulting from application of biosolids at Green Acres. (Pis’. Ex. 3 [Johnson P.I. Deck] ¶ 8.) b. Orange and Los Angeles Counties’ Operations Plaintiffs Orange County Sanitation District (“OCSD”) and County Sanitation District No. 2 of Los Angeles County (“CSD No. 2”) operate wastewater treatment plants in Orange County and Los Angeles County, respectively, which generate bio-solids that are recycled by Plaintiff Shaen Magan at sites in Kern County known as Honey Bucket Farms and Tule Ranch. (DOSSUF ¶ 4.) OCSD has been land applying biosolids under contract at Tule Ranch since 1996. (Id. ¶ 5.) Similar to the arrangement used by the City, OCSD collects wastewater generated by residential, commercial, and industrial users within its service area in Orange County, and then treats this wastewater at two treatment plants, where a portion of the wastewater solid residuals are collected, treated further, and reconstituted into biosolids. The biosolids are then reused as a fertilizer and a soil conditioner at Tule Ranch. (Id. ¶ 6.) The biosolids OCSD ships to Kern meet the Class A and EQ standards. (Pis’. Ex. 24 [Ghirelli P.I. Decl.] ¶¶ 3, 6-7.) CSD No 2 collects wastewater from 78 cities and from the unincorporated areas of Los Angeles County located outside the City of Los Angeles. CSD No. 2 treats this wastewater in its 11 treatment plants, and then conveys the solid materials in the wastewater to its Joint Water Pollution Control Plant, where these materials are separated, given additional treatment, and processed into biosolids for beneficial reuse. (DOSSUF ¶ 8.) CSD No. 2 sends its biosolids to Honey Bucket Farms. (Id. ¶ 9.) The record contains far less information about Tule Ranch and Honeybueket Farms than it does concerning Green Acres Nevertheless, no party has contended there is any significant difference between the sites, and indeed, the arrangements are similar in several important respects. At each Kern County location, the City’s, OCSD’s, and CSD No. 2’s biosolids are used as a nutrient supplement and soil amendment on acreage used to grow animal feed crops. (Id. ¶¶ 3, 6, 9.) if the sites in Kern County became unavailable, Plaintiffs would be required to find alternative sites, most probably in Arizona (Pls’. Ex. 18 [Bahr P.I. Deck] ¶ 9), which would significantly increase transportation costs and impose greater environmental impact from vehicle emissions, both due largely to the increased hauling distances. (Pls’. Ex. 19 [Stahl P.I. Deck] ¶ 17; Pis’. Ex. 1 [Mini-mide P.I. Deck] ¶¶ 32-37.) 2. Kern’s Biosolids Before the Kern County Board of Supervisors adopted biosolids ordinances in 1999 and 2002, Kern land applied its sewage sludge to an 1,100-acre farm that it owns in the unincorporated areas of the County. (Pis’. Response to Defs’ Separate Statement (“PSGI”) ¶ 25.) However, Kern does not currently apply any of its own biosolids to Kern farmland, and has not since at least 2004. Instead, the Kern Sanitation Authority currently sends its biosolids to a private contractor, San Joaquin Composting (“SJC”), which processes them further and sells them as compost to private firms. No in-county government entity currently applies biosolids to land in Kern’s jurisdiction. (See Defs’. Separate Statement in Reply to Pis’. Response to Defs’. Separate Statement SGI (“DRSGI”) ¶¶ 105-106.) D. Regulation of Biosolids in Kern County 1. Kern’s Regulation of Biosolids Pri- or to Measure E Kern has had two biosolids ordinances prior to Measure E. First, Kern began regulating land application of biosolids in 1998, when it required that the biosolids meet the standards for Class A and Class B biosolids. County Sanitation Dist. No. 2 of L.A. County v. County of Kern, 127 Cal.App.4th 1544, 1568, 27 Cal.Rptr.3d 28 (Ct.App.2005) (“County Sanitation ”). Second, in 1999, Kern adopted an ordinance that phased out the land application of Class B biosolids over a three-year period. And after the three-year phase-out, the 1999 ordinance allowed only Class A EQ biosolids. Id. at 1568 n. 34, 27 Cal. Rptr.3d 28; 40 C.F.R. 503.13(b)(3). 2. Cities Within Kern County Because the incorporated areas of the County necessarily lie beyond Kern’s jurisdiction, Cal. Const, art. XI, § 7, Kern has never regulated the land application of bio-solids by the several cities in the County that land apply biosolids on farm land within city limits. These cities include Bakersfield, see B.M.C. § 8.90.020(A) (allowing land application of Class A EQ biosolids to city owned or operated farmland), Taft, Wasco, and Delano (Pls’. Ex. 2 [Stockton P.I. Deck] ¶ 20; Stahl P.I. Deck ¶ 12 (stating that incorporated areas in Kern County allow Class B biosolids); see also Pls.’ Ex. 9 [McCutcheon P.I. Deck], Ex. A at 299 (opining that Measure E could force Kern to find incorporated cities in the County to accept its biosolids for land application)). Nearly 44% of Kern County voters reside in Bakersfield, while only 39% percent reside in unincorporated areas (as of August 2, 2007). See http:// elections.eo kern.ca.us/ Elections/district-countstatistics.asp (last visited Aug. 2, 2007). 3. Measure E a. The Campaign Dubbed the “Keep Kern Clean Ordinance of 2006,” Measure E was sponsored by Dean Florez, a State Senator whose district encompasses portions of Kern County, including portions of Bakersfield, and who had previously introduced statewide legislation that would have prohibited local governments from exporting their sewage sludge to other counties unless there were no feasible local disposal option. S.B. 926 (Cal.2005). Indeed, Measure E’s initiative campaign made clear that the target was sludge from out-of-county. It included such statements as: —“Measure E will stop L.A. from dumping on Kern” —“We will proclaim our independence from polluting Southern California and Los Angeles.” —“[W]e’ve got a bully next door, flinging garbage over his fence into our yard” —“A lot of voters are just kind of tired of being the dumping ground for everyone else in the state.... Enough sludge, enough sexual predators, enough prisons, enough dairies. When does the county stand up for itself?” (Stockton P.I. Deck ¶ 19; Pis. Ex. 19 [Editorial, Take Your Sludge and Shove It!, Bakersfield Californian] at B-8.) Moreover, the campaign website, http://www. keepkernclean.com, includes graphics that state “Keep L.A. Sludge out of Kern County” and depict stacked outhouses, with the top labeled “LA COUNTY” and the bottom labeled “KERN COUNTY.” It also contains a link to an online editorial that states: Until Kern County voters say no to sludge and YES to Measure E, every man, woman and child who lives here will have to put up with Southern California dumping its human and industrial waste on us. Why? Because Kern County is the cheapest place for Southern California to dump the chemical and biological-laced goo that is scraped from the bottoms of its sewer plants. Measure E on the June ballot will prohibit the land application of sludge in unincorporated areas of Kern County. Southern California will have to find a better, safer way to dispose of its goo, which contains heavy metals, industrial solvents, feces, medical waste and pharmaceuticals. http://www.bakersfield.com/135/story/ 48404.html. Another link from the campaign website leads to an article that states: Fearful of deteriorating air and water quality, many folks in [Kern] county have about had it with the daily parade of trucks dumping sewage sludge onto their fields. On top of that, they can’t stand what is viewed as Los Angeles’ imperial attitude, such as recent reports that social workers in Los Angeles County had given homeless people one-way bus tickets to Bakersfield, the largest city in Kern County. In fact, many residents are simply sick of Los Angeles. “The valley is home to every one of the 11 prisons built since 1990,” .... “We have waste-burners and tire-burners and proposals for even more garbage. At some point, there’s enough critical mass that people say: ‘No more. That’s not our future.’ ” Not surprisingly, on June 6, 2006, the voters of Kern County adopted Measure E with over 83% of the vote. (Pis’. Response to Defs’. Separate Statement of Undisputed Material Facts (“PRSSUF”) ¶ 1.) b. The Ordinance Measure E repealed Chapter 8.05 of the Ordinance Code of Kern County and enacted a new Chapter 8.05, which prohibits the land application of all biosolids in the unincorporated areas of Kern County. K.C.O.C. §§ 8.05.10, 8.050.40(A). The ordinance defines “land apply” as “the spraying, spreading or other placement of Bio-solids onto the land surface, the injection of Biosolids below the land surface, or the incorporation of Biosolids into the soil.” Id. § 8.05.030(E). Excluded from the general ban are bio-solid products purchased from retail outlets and used primarily for residential purposes in limited quantities. See id. § 8.05.030(B). Violations of the ordinance constitute misdemeanors punishable by fines and imprisonment. Id. § 8.05.060. The stated purpose and intent of Measure E are as follows: There are numerous serious unresolved issues about the safety, environmental effect, and propriety of land applying Biosolids or sewage sludge, even when applied in accordance with federal and state regulations. Biosolids may contain heavy metals, pathogenic organisms, chemical pollutants, and synthetic organic compounds, which may pose a risk to public health and the environment even if properly handled.... land spreading of biosolids.. may cause loss of confi-denee in agricultural products from Kern County, Id. § 8.05.010. Measure E is at issue here. IV. DISCUSSION A. Tbe Cross Motions for Summary Judgment 1. The Legal Standard The Court assesses the motions under the usual standard, which permits entry of judgment where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). Thus, the Court must first decide whether there exist “any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), If the facts are not in dispute, then the Court determines whether the moving party is entitled to judgment as a matter of law. Further, where summary judgment is not proper on the entire claim, under Rule 56(d) the Court may grant partial summary judgment on discrete elements of the claim. Fed.R.Civ.P. 56(d); Lies v. Farrell Lines, Inc., 641 F.2d 765, 769 (9th Cir. 1981) “On cross motions for summary judgment, the burdens faced by the opposing parties vary with the burden of proof they will face at trial. When the moving party will have the burden of proof at trial, his showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party.” Seagate Tech, Inc. v. St. Paul Fire & Marine Ins. Co., 11 F.Supp.2d 1150, 1152 (N.D.Cal.1998). On the other hand, “a moving party who will not have the burden of proof at trial need only point to the insufficiency of the other side’s evidence, thereby shifting to the nonmoving party the burden of raising genuine issues of fact by substantial evidence.” Id. 2. The Equal Protection Clause Claim Plaintiffs claim that Measure E violates the Equal Protection Clause, U.S. Const., amend. XIV, § 1, by treating biosolids differently than other fertilizers, which they claim present equal if not greater public health risks. The Court disagrees and concludes Kern’s motion for summary adjudication of this claim has merit. a. Overview of Equal Protection Doctrine Where, as here, the classification at issue does not involve fundamental rights or suspect classes, it comports with the Equal Protection Clause “if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose.” Heller v. Doe, 509 U.S. 312, 319-20, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). Under rational basis analysis, a “classification ‘must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.’ A State, moreover, has no obligation to produce evidence to sustain the rationality of a statutory classification.” Id. at 320, 113 S.Ct. 2637 (citations omitted). Indeed, a “legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data.” Id. (citation omitted). “The problems of government are practical ones and may justify, if they do not require, rough accommodations — illogical, it may be, and unscientific.” Id. at 321, 113 S.Ct. 2637 (quoting Metropolis Theatre Co. v. Chicago, 228 U.S. 61, 69-70, 33 S.Ct. 441, 57 L.Ed. 730 (1913)). Moreover, [ejvils in the same field may be of different dimensions and proportions, requiring different remedies.... Or the reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind.... The prohibition of the Equal Protection Clause goes no further than the invidious discrimination. F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 316, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993) (emphasis added). Therefore, under rational basis review: the Equal Protection Clause is satisfied so long as there is a plausible policy reason for the classification, the legislative facts on which the classification is apparently based rationally may have been considered to be true by the governmental decisionmaker, and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational. Nordlinger v. Hahn, 505 U.S. 1, 11, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992) (emphasis added) (citations omitted) Because the rational basis standard requires great deference to legislative judgments, a plaintiff who brings an equal protection claim attacking a regulatory statute like the one at issue in this case bears the burden to negate every conceivable basis that might support the challenged statute. Beach Comm’ns, 508 U.S. at 315, 113 S.Ct. 2096. A plaintiff may carry this burden by demonstrating that the defendant’s proffered purposes were merely pretextual. This may be accomplished when confronted with a defense motion for summary judgment by “creating a triable issue of fact that either: (1) the proffered rational basis was objectively false; or (2) the defendant actually acted based on an improper motive.” Squaw Valley Dev. Co. v. Goldberg, 375 F.3d 936, 946 (9th Cir.2004) (emphases added) (citations omitted); see also, e.g., Armendariz v. Penman, 75 F.3d 1311, 1327 (9th Cir.1996) (plaintiffs “raised a triable issue of fact as to whether the [City’s] asserted rationale of directing efforts to enforce the housing code at high-crime areas was merely a pretext” for obtaining their property at low prices). As the Court explains below, nothing in this record suggests that the justifications for the enactment of Measure E were pretextual. b. Analysis i. Measure E’s Stated Purposes Were Not Pretextual and Were Legitimate Here, Measure E recites a variety of legitimate purposes, including a generalized concern for health and safety, nuisance abatement from unpleasant odors associated with biosolids, and protection of the “confidence” in agricultural products from Kern County. K.C.O.C. § 8.05.010. And contrary to Plaintiffs’ contention (Opp. at 11-13), no evidence indicates that these stated purposes were pretextual even though the campaign in favor of Measure E appears to have played on regional rivalries and was clearly targeted at Plaintiffs, as it involved a variety of creative slogans referring to “LA. sludge.” (See Stockton P.I. Deck ¶ 19; Pis. Ex. 19 [Editorial, Take Your Sludge and Shove It!, Bakersfield Californian] at B-8.) Nothing in these statements indicates a bare desire to harm Plaintiffs unrelated to the environmental harms they were perceived to be causing and which Kern could legitimately redress. Rather, the statements merely reflect an indisputable fact — that Southern California counties were the ones introducing the perceived pollutant to Kern’s jurisdiction. Put simply, although the campaign indicated frustration and even animosity towards Plaintiffs, these feelings were directly related to Measure E’s stated environmental purposes. Thus, though animus may have been a significant element of the campaign, that fact alone does not establish a violation of the Equal Protection Clause. As the Supreme Court has explained: “Although such biases [as negative attitudes and fear] may often accompany irrational (and therefore unconstitutional) discrimination, their presence alone does not a constitutional violation make.” Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 367, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001). In short, Measure E sought to address perceived pollution, and Plaintiffs were perceived polluters. Even the campaign references to sexual predators and prisons were mere rhetoric to illustrate that, in the view of the campaign, sludge was something harmful to the County that was introduced by outsiders. For that reason, the campaign rhetoric does not reasonably lead to the inference that Measure E’s stated environmental purpose was a pretext to conceal some other, unconstitutional, objective. ii. Measure E Rationally Furthers Its Stated Purposes If one considers the scope and impact of Measure E apart from the campaign rhetoric, one can readily determine that it is rationally related to its purposes. Measure E’s drafters and supporters could rationally speculate that land application of biosolids would present unknown future health risks that would be avoided by banning the practice. They also could properly be concerned that the reputation of Kern’s agricultural products would be adversely affected if the County became known as a dumping ground for the refuse of Southern California residents. Indeed, a 1996 NRC study states that adverse public perception of the use of sewage sludge in food crop production is a serious problem and that “public perception does not necessarily depend on objective, scientific evidence.” (Defs’. Ex. 20 at 158-59.) The 1996 NRC study also stated: [T]he major business risk for farmers and food processors ... is stigmatization of the product and its source. This leads to loss of customer confidence, choice of competing products, and loss of market share on regional and even national scales. Even if contamination or injury causation is unproved, these consequences may occur because widespread media coverage, speculations, or allegations may be enough to make the retailers and consumers reject the product. (Id. at 171.) The NRC study also concluded that “the risks from negative public perception could be substantial. Negative public perception of food crops produced using treated wastewater or sludge could have detrimental impacts on consumer demand and the profit and survival of firms.” (Id. at 160.) Plaintiffs object to the above evidence, contending that because their biosolids are applied on acreage used only to grow animal feed, concerns related to food for human consumption are irrelevant. The objection misses the point. Evidence concerning public perception regarding food products confirms (as if it needed confirming) that factors other than scientific realities frequently affect the public’s beliefs about its food supply. Since perception can become reality for those involved in agri-business, Kern could rationally conclude that a complete ban on the land application of biosolids with its jurisdiction rationally furthers Kerris agricultural reputation. Thus, even if Plaintiffs themselves do not grow food for human consumption, that fact alone would not render Measure E irrational as applied to them. Rather than adopting a potentially cumbersome program to ensure that no crops grown with biosolids are used for human consumption, Kern may simply have preferred not to incur the risks of being associated with biosolids at all. The choice to enact a blanket ban was not irrational. Finally, the record also includes evidence that some problems, including the potential for offensive odors, cannot be eliminated even at the “best run” biosolid disposal operations. (Defs’. Ex. 19 [1999 EPA Report: Biosolids Generation, Use, and Disposal in the United States] at 41.) This confirms that Measure E rationally furthered its stated purpose of avoiding nuisances associated with biosolids. For these reasons, Measure E comports with the Equal Protection Clause, notwithstanding a variety of evidence in the record that biosolids present only negligible risks to human health when applied in conformity with federal regulations. As the Supreme Court has emphasized, a “legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data.” Heller, 509 U.S. at 320, 113 S.Ct. 2637 (citation omitted). This means that, for Equal Protection purposes, Kern voters were not obligated to make a decision based on cutting edge research: Measure E comports with the Equal Protection Clause unless it was irrational, and on this record, it was not. Therefore, Kerris motion for summary judgment on the Equal Protection claim is GRANTED. 3. The Commerce Clause Claim Plaintiffs’ Commerce Clause claim fares better, largely because they have carried their burden to demonstrate Measure E’s effect of discriminating against interstate commerce, thereby subjecting the ordinance to strict scrutiny which it cannot survive. a. Overview of the Dormant Commerce Clause The Commerce Clause, U.S. Const, art. I, § 8, cl. 3, affirmatively grants Congress plenary power to regulate commerce and limits the power of states and local government to adopt ordinances that interfere with interstate commerce, even “[w]hen legislating in areas of legitimate local concern, such as environmental protection and resource conservation.” Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 471, 101 S.Ct. 715, 66 L.Ed.2d 659 (1981). Because Congress has absolute authority in the regulation of commerce, it may legislatively exempt local ordinances from the Commerce Clause’s restrictions. “Where state or local government action is specifically authorized by Congress, it is not subject to the Commerce Clause even if it interferes with interstate commerce.” White v. Mass. Council of Constr. Employers, Inc., 460 U.S. 204, 213, 103 S.Ct. 1042, 75 L.Ed.2d 1 (1983) (quoting S. Pac. Co. v. Arizona, 325 U.S. 761, 769, 65 S.Ct. 1515, 89 L.Ed. 1915 (1945)). However, Supreme Court precedent teaches that such authorization must be clearly expressed by Congress, and in the absence of such a clear expression courts should not assume Congress has authorized a discriminatory or burdensome local regulation. Hillside Dairy Inc. v. Lyons, 539 U.S. 59, 66, 123 S.Ct. 2142, 156 L.Ed.2d 54 (2003). Where the Commerce Clause does apply, the level of scrutiny depends on whether the ordinance at issue “discriminates” against interstate commerce. “[Ljlaws that discriminate against interstate commerce face ‘a virtually per se rule of invalidity.’” Granholm v. Heald, 544 U.S. 460, 476, 125 S.Ct. 1885, 161 L.Ed.2d 796 (2005) (quoting Philadelphia v. New Jersey, 437 U.S. 617, 624, 98 S.Ct. 2531, 57 L.Ed.2d 475 (1978)). Because of this “virtually per se rule,” precedent dictates that discriminatory statutes should be subjected to strict scrutiny and should be upheld “only if the government can demonstrate both that the law serves a legitimate local purpose and that this purpose could not be served as well by available nondiserimina-tory means.” Maine v. Taylor, 477 U.S. 131, 138, 106 S.Ct. 2440, 91 L.Ed.2d 110 (1986). “ ‘[Discrimination’ simply means differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter.” Or. Waste Sys., Inc. v. Or. Dep’t of Envtl. Quality, 511 U.S. 93, 99, 114 S.Ct. 1345, 128 L.Ed.2d 13 (1994). By contrast, laws that do not discriminate against interstate commerce face a more deferential standard. Under the so-called “Pike test,” “nondiscriminatory regulations that have only incidental effects on interstate commerce are valid unless ‘the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.’ ” Id. (quoting Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970)). b. Application i. Biosolids Are Articles in Interstate Commerce A local government’s regulation of waste and waste disposal constitutes “regulation of interstate commerce” where the regulation’s economic effects are interstate in reach. E.g., C & A Carbone, Inc. v. Town of Clarkstown, N.Y., 511 U.S., 383, 389, 114 S.Ct. 1677, 128 L.Ed.2d 399 (1994): see also Conservation Force, Inc. v. Manning, 301 F.3d 985, 993 (9th Cir. 2002) (“To determine whether the dormant Commerce Clause is applicable, we ask ... whether the activity regulated ... has a ‘substantial effect’ on interstate commerce such that Congress could regulate the activity.”). Here, the record reflects that disposal sites for biosolids are relatively scarce (Pls’. Ex. 19 [Stahl P.I. Deck] ¶ 16), and that elimination of the sites in Kern County, California will likely lead to diversion of the material to Arizona (id. ¶ 16; Pls’. Ex. 1 [Minimide P.I. Deck] ¶ 9). This suffices to bring Measure E within the ambit of the Commerce Clause. See, e.g., C & A Carbone, 511 U.S. at 389, 114 S.Ct. 1677. Although C & A Carbone involved a restriction that barred out-of-state waste haulers from bringing refuse across state lines, Kern’s status as a county and not a state does not render the Commerce Clause inapplicable. “[A] State (or one of its political subdivisions) may not avoid the strictures of the Commerce Clause by curtailing the movement of articles of commerce through subdivisions of the State, rather than through the State itself.” Fort Gratiot Sanitary Landfill, Inc. v. Mich. Dep’t of Natural Res., 504 U.S. 353, 361, 112 S.Ct. 2019, 119 L.Ed.2d 139 (1992): see also Dean Milk Co. v. Madison, 340 U.S. 349, 354-56, 71 S.Ct. 295, 95 L.Ed. 329 (1951) (invalidating an ordinance that barred certain milk producers from selling milk within city limits); BFI Med. Waste Sys. v. Whatcom County, 983 F.2d 911, 913 (9th Cir.1993) (citing Fort Gratiot for the proposition that “out-of-county waste bans are per se unconstitutional”). Indeed, discrimination against out-of-county entities would, a fortiori, discriminate against out-of-state entities and therefore be subject to the virtual per se rule of invalidity. ii. Congress Has Not Exempted Measure E From Commerce Clause Limitations Kern argues vigorously that Measure E is immune from attack under the Commerce Clause because Congress has specifically authorized local regulations of biosolids. (Defs’. Mot. at 2-9; Defs’. Reply at 1-4.) In support, Kern cites a provision in the Clean Water Act, which provides: The determination of the manner of disposal or use of sludge is a local determination, except that it shall be unlawful for any person to dispose of sludge from a publicly owned treatment works or any other treatment works treating domestic sewage for any use for which regulations have been established pursuant to subsection (d) of this section, except in accordance with such regulations. 33 U.S.C. § 1345(e). The legislation, properly construed and understood, provides no support of Kern’s position. As the Court has explained twice previously, Kern I, 2006 WL 3073172, at *7; Kern II, 462 F.Supp.2d at 1113, section 1345(e), though contemplating local legislation regarding sludge disposal, contains no language remotely approaching authorization of local legislation that discriminates against or unduly burdens interstate commerce. As already noted, congressional approval for local regulation in general does not render the Commerce Clause inapplicable. See South-Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 91-92, 104 S.Ct. 2237, 81 L.Ed,2d 71 (1984). Rather, the question is whether Congress has made unmistakably clear its intent to “remove federal constitutional constraints” and thereby “sustain state legislation from attack under the Commerce Clause.” Sporhase v. Nebraska, ex rel. Douglas, 458 U.S. 941, 959-60, 102 S.Ct. 3456, 73 L.Ed.2d 1254 (1982). As the Court in Maine v. Taylor explained: [Bjecause of the important role the Commerce Clause plays in protecting the free flow of interstate trade, this Court has exempted state statutes from the implied limitations of the Clause only when the congressional direction to do so has been unmistakably clear.... Maine identifies nothing ... that suggests Congress wished to validate state laws that would be unconstitutional without federal approval. 477 U.S. at 138-39, 106 S.Ct. 2440 (citation and internal quotation marks omitted); see also Hillside Dairy, 539 U.S. at 68, 123 S.Ct. 2142 (“Because § 144 does not clearly express an intent to insulate California’s pricing and pooling laws from a Commerce Clause challenge, the Court of Appeals erred in relying on § 144 to dismiss the challenge.”); Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 155 n. 21, 102 S.Ct. 894, 71 L.Ed.2d 21 (1982) (holding that Congress had “convincingly” though not “expressly” “announced that Indian taxes do not threaten its latent power to regulate interstate commerce”). Because Kern cites no such expression of congressional intent here, the Commerce Clause analysis applies to the Court’s consideration of Measure E. iii. Measure E’s Effect Is To Discriminate Against Interstate Commerce, And It Cannot Survive Strict Scrutiny Having concluded that Congress has not exempted Measure E from Cornmerce Clause analysis, the Court begins by noting that Measure E does not discriminate on its face; by its terms, it bans all biosolids regardless of their origin. See K.C.O.C. §§ 8.04.040(A), 8.05.050(A), 8.05.060. However, even absent facial discrimination, a court may find that a state law violates the Commerce Clause on proof either of discriminatory effect, or of discriminatory purpose. Minnesota, 449 U.S. at 471 n. 15, 101 S.Ct. 715. Based on that proposition, Plaintiffs contend that, despite Measure E’s facial neutrality, it nonetheless transgresses the Commerce Clause because its underlying purpose and effect is to discriminate against biosolids from the City and other Southern California communities. (Pis’. Opp. at 6.) The Court previously found Plaintiffs were likely to prevail with this position, Kern II, 462 F.Supp.2d at 1113-15, and, upon careful consideration, now holds that they have done so. Even though for Equal Protection purposes the antagonism toward Los Angeles in particular and Southern California in general fails to negate a legitimate environmental concern about the land application of biosolids within Kern County, Commerce Clause jurisprudence focuses on a different set of concerns — the discriminatory impact of the legislation on commerce or articles in commerce. In that regard, one cannot ignore the campaign rhetoric, which included such statements as “Measure E will stop L.A. from dumping on Kern” and “[WJe’ve got a bully next door, flinging garbage over his fence into our yard.” While these sorts of statements do not suggest that Measure E was enacted for the purpose of protecting local industry at the expense of outside businesses, they amply demonstrate that the initiative was not so subtly animated by a specific desire to exclude Plaintiffs’ biosolids from the County. And while excluding Plaintiffs’ biosolids from disposal in the County, Measure E has virtually no impact on in-county biosolid programs, as Kerris bioso-lids could continue to be shipped to SJC, and cities in the County were permitted to continue to allow land application within their corporation limits. In these circumstances, the record compels only one conclusion; Measure E’s drafters and proponents, though perhaps genuinely motivated by concern about the environmental impact of biosolids, reacted to this problem by banning land application in areas used by out-of-county entities, while tolerating it in areas used by in-county entities. This resulting disparity was not merely an incidental effect — rather, it was certainly intended, as evidenced by a campaign with the theme of independence from Southern California bullies. Having reached this conclusion, it follows that Measure E must be subjected to strict scrutiny not because of an illegitimate purpose, Minnesota, 449 U.S. at 463, 471 nn. 7, 15, 101 S.Ct. 715 (presence of genuine environmental purpose precludes application of strict scrutiny on purpose grounds), but rather because the legislation was intended to and does have a discriminatory effect. See Spoklie v. Montana, 411 F.3d 1051, 1060 (9th Cir.2005) (noting that the rule of strict scrutiny for Commerce Clause claims applies “where legislation results in ‘patent discrimination against interstate trade.’ ” (quoting Philadelphia, 437 U.S. at 624, 98 S.Ct. 2531)). Although the circumstances presented in this case are out of line with the more usual pattern of discrimination in Commerce Clause jurisprudence, Measure E must be tested under the strict scrutiny standard because the legislation plainly discriminates, and was intended to discriminate, against out-of-county sludge. To circumvent this analysis, Kern argues that Measure E regulates entirely even handedly within the unincorporated areas of the County. (Defs’. Reply at 7-8.) The argument ignores reality: out-of-county interests are the only ones directly applying biosolids to land in the unincorporated areas, and therefore they will be the only ones to incur the significant transaction costs associated with the termination and relocation of their Kern County operations. (See Pls’. Ex. 18 [Bahr P.I. Decl.] ¶ 11 (noting costs required to initiate a new biosolids program).) No city within the County applies biosolids to land in the unincorporated areas, and Kern itself sends its biosolids to SJC. (DRSGI ¶¶ 105-106.) Although the application of the bio-solids ban to SJC’s compost presents some threat to Kern’s current disposal method (Pls’. Ex. 9 [MeCutcheon Decl.] Ex. A [Memo to Kern Board of Supervisors] at 298-99), the SJC arrangement insulates Kern in an important way from Measure E’s burdens, as Kern can continue sending its material there so long as SJC finds enough buyers in neighboring jurisdictions. As a result, even confined to the unincorporated areas of the County, Measure E’s burdens fall significantly heavier on Plaintiffs than they do on Kern. Second, and more importantly, the Court cannot ignore the fact that incorporated cities within Kern County continue to allow land application of biosolids, in some cases of lesser quality that Plaintiffs’. This, coupled with the overwhelming evidence of intent to exclude out-of-county sludge from the County as a whole, compels the conclusion that Measure E has the practical effect of allowing Kern County municipalities to continue applying their biosolids within the County’s borders, but preventing out-of-county jurisdictions from doing so. It may not be appropriate to consider the extra-jurisdictional effects of legislation in every ease, but ignoring the conduct of Kern County municipalities would impose an artificiality on the analysis that would undermine the very purpose of long-standing Commerce Clause jurisprudence. This is especially true in this case where the record reflects that nearly 61 % of Kern County’s registered voters live in incorporated areas of the County. This means that over three-fifths of the decision-makers tolerate local disposition of locally generated biosolids, but have prevented out-of-county recyclers from engaging in precisely the same activity by banning the operation of any biosolid recycling facilities in the unincorporated areas of the County. This constitutes a discriminatory effect far too conspicuous to hide behind the jurisdictional limits of Kern itself. Cf., e.g., Healy v. Beer Inst., 491 U.S. 324, 336, 109 S.Ct. 2491, 105 L.Ed.2d 275 (1989) (holding that courts must consider the practical effect of the law, including how it interacts with the laws of other jurisdictions, in considering the Commerce Clause analysis); Valley Bank of Nev. v. Plus Sys., Inc., 914 F.2d 1186, 1190 (9th Cir.1990) (same, citing Healy). And as the Supreme Court noted in United Haulers Ass’n, Inc. v. Oneida-Herkimer Solid Waste Authority. Our dormant Commerce Clause cases often find discrimination when a State shifts the costs of regulation to other States, because when the burden of state regulation falls on interests outside the state, it is unlikely to be alleviated by the operation of those political restraints normally exerted when interests within the state are affected. — U.S. -, 127 S.Ct. 1786, 1797, 167 L.Ed.2d 655 (2007); see also Maine, 477 U.S. at 149 n. 19, 106 S.Ct. 2440 (explaining that the Commerce Clause does not allow locales to further legitimate environmental purposes by forcing outsiders to “bear the brunt of the conservation program for no apparent reason other than that they lived and voted in other” jurisdictions). That is what happened here. Measure E shifts the costs resulting from its regulation almost entirely to out-of-county interests through an initiative process that was unchecked by the operation of the normal political restraints, such as an organized local opposition. The Supreme Court teaches that this sort of discriminatory legislation transgresses the dormant Commerce Clause absent the most persuasive local justification. Kern may protest that, even viewed from the perspective of the County as a geographical region and not simply as a political entity, Measure E has no discriminatory effect because Plaintiffs would be free to land-apply biosolids in incorporated areas of the County. While tempting, this position would require the Court to ignore undisputed evidence in the record. First, it is undisputed that Measure E’s likely effect is to cause Plaintiffs to ship their biosolids to Arizona. While the record does not foreclose the possibility that Plaintiffs could simply use land in their own jurisdictions, their undisputed willingness to accept the greater distance to Arizona leads only to the inference that they could not simply resort to the incorporated areas of the County. Moreover, Kern itself submitted a staff report opining that, should Measure E cause SJC to stop accepting Kern bioso-lids, Kern could be in the position of having to “[f]ind an incorporated city in the County that would accept [Kern] generated biosolids.” (Pls’. Ex. 9 [McCutcheon Deck] Ex. A [Memo to Kern Board of Supervisors] at 299.) The expression of this concern suggests that the cities themselves exercise some de facto control over imports, which, in combination with the anti-Los Angeles rhetoric, suggests they would not accept Plaintiffs’ biosolids, thereby leading to a County-wide import ban in practical effect. But even more significant evidence of Measure E’s intended effect comes from the campaign materials: Measure E would assertedly kick Los Angeles sludge out of Kern County. Indeed, it would be strange to think that residents of the County would tolerate Los Angeles “dumping” on its more densely populated incorporated areas when they objected so strongly to the affront to their unincorporated areas. Therefore, the Court must take the rhetoric at face value. Given the overwhelming evidence that excluding “L.A. sludge” from the County was the campaign’s intent, the only reasonable inference is that Measure E would force Plaintiffs’ operations out of the County entirely and not merely divert them to incorporated areas. By contrast, no evidence indicates Plaintiffs could use incorporated areas for their biosolids programs. Thus, the Court finds that Measure E Plaintiffs have established Measure E’s discriminatory effect as a matter of law, and therefore that Measure E must satisfy strict scrutiny. E.g., United Haulers, 127 S.Ct. at 1793. Strict scrutiny means Measure E violates the Commerce Clause unless Kern can demonstrate it was the only available means to address its legitimate environmental concerns. Id. Kern makes no attempt to do so, and on this record, alternatives certainly exist. Rather than a complete ban on biosolids, Kern could simply have regulated the volume, location, and quality of the biosolids it allowed to be land applied. Kern offers no argument why such methods would have been infeasible or inadequate to address its concerns, and therefore it cannot carry its burden to defend Measure E against strict scrutiny. Accordingly, the Court holds Measure E violates the Commerce Clause, and therefore Plaintiffs motion for summary judgment on this claim is GRANTED and Kern’s is DENIED. 4. The CIWMA Preemption Claim Plaintiffs also claim that Measure E is preempted by the CIWMA. Kern defends against this theory by contending Plaintiffs