Iowa Supreme Court asked to toss suit seeking to force Iowa to regulate agricultural pollution

by Rox Laird | July 29, 2020

The Iowa Supreme Court will hear arguments in an appeal challenging a lawsuit filed by citizens and environmental groups claiming State environmental agencies failed to reduce the presence of agricultural pollutants in the Raccoon River.

Iowa CCI and Food & Water Watch filed suit in Polk County District Court in March 2019 against the Iowa Department of Natural Resources, the Environmental Protection Commission, the Natural Resource Commission, and the Iowa Department of Agriculture and Land Stewardship. [Go to On Brief’s Cases in the Pipeline page to read briefs filed in this case.]

The DNR has classified the Raccoon River in Polk County as “impaired” because it does not meet the federal drinking water nitrate standard, but plaintiffs argue that the State has failed to regulate pollutants entering the river from agricultural fertilizer and livestock manure. The plaintiffs cite the public’s right to use navigable waters under the “public trust doctrine” under common law and the Iowa Constitution.

The plaintiffs claim that the State has failed its “duty of care to safeguard the interests of Iowa citizens as public trust beneficiaries” by allowing nitrogen and phosphorus discharges from agricultural sources to impair the Raccoon River. As a result, plaintiffs argue, ICCI’s members are unable to enjoy recreation on the Raccoon, and they pay through water bills the cost of the Des Moines Water Works’ treatment of the impaired water for its 500,000 customers.

ICCI seeks an injunction requiring the State to implement a mandatory limit on nitrogen and phosphorus from agricultural sources in the Raccoon River watershed, and enjoining defendants from approving new and expanded confined-animal feeding operations until the State implements a mandatory remedial plan.

The State moved to dismiss the suit, which Polk County District Judge Robert Hanson denied. The State appealed Hanson’s decision, and the Iowa Supreme Court will hear the appeal during the Court’s term that begins in September.

In its appeal of the trial court decision, the State asserts the plaintiffs lack standing, their claims are not justiciable, and they failed to exhaust remedies under the Iowa Administrative Procedure Act.

On the justiciability question, the State argues that it is well-established that “courts will not intervene or attempt to adjudicate a challenge that involves a ‘political question’,” a principle rooted in the separation-of-powers doctrine.

“The ‘mandatory remedial plan’ ICCI would have the Court order the State develop would essentially turn the Court into a ‘water quality czar’ for the State of Iowa, regulating the State’s efforts to reduce nutrients and the construction and/or expansion of certain livestock facilities,” the State argues. “Such relief runs afoul of the political question doctrine and/or the separation of powers because it would require the Court to: order the legislature to adopt several new laws; invalidate or amend several other laws; oversee executive branch rule-making; and make initial policy determinations and/or decide technical remedial questions. These are the provinces of separate branches of government — not the judiciary.”

This appeal has drawn interest from parties on both sides of the question who filed amicus curiae (friend of the court) briefs with the Supreme Court.

Amicus briefs filed in support of ICCI: Drake University law professors Neil Hamilton, Allan Vestal, Mark Kende, and Jerry Anderson; Gulf Organized Fisheries in Solidarity and Hope, Inc., and Mississippi Commercial Fisheries United, Inc.; Iowa Farmers Union, and Farm Aid; and, the Board of Water Works Trustees of the City of Des Moines.

Amicus briefs in support of the State: Iowa Cattlemen’s Association, Iowa Corn Growers Association, Iowa Farm Bureau Federation, Iowa Pork Producers Association, Iowa Poultry Association, Iowa Soybean Association, Iowa State Dairy Association, Iowa Turkey Federation; and, the Agricultural Legal Defense Fund.

ICCI’s lawsuit is in effect a state court version of an unsuccessful effort in 2015 in federal court to force the federal government to enforce the Clean Water Act by regulating nitrate discharges. In that case, the Des Moines Water Works sued agricultural drainage districts in three northern Iowa counties arguing the drainage districts were a primary source of chemical fertilizers polluting Des Moines drinking water.

Before the case went to trial, however, the U.S. District for the Northern District of Iowa asked the Iowa Supreme Court to rule on questions of Iowa law raised in the suit, namely whether those drainage districts could be sued for damages in the first place. The Court, with two justices not participating, issued a decision in January 2017 supporting the drainage districts. [Go to On Brief’s Updates and Analysis page to read our backgrounder post on this case.]

The U.S. District Court subsequently dismissed the Water Works’ suit on summary judgment.


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