Iowa Environmental Compliance

I am more than closely watching an environmental lawsuit filed by ICCI and Food & Water Watch on March 27, 2019, in the Polk County, Iowa district court against the State of Iowa and several officials and departments.  As full disclosure, I have been retained by the Agricultural Legal Defense Fund to file an amicus brief defending the State of Iowa in the case.

As I’ve written previously, the lawsuit was filed by Iowa Citizens for Community Improvement (ICCI) and Food & Water Watch, two environmental groups. ICCI is well-known to Iowans but Food & Water Watch is new to the Iowa environmental scene.  The lawsuit alleges that the State of Iowa has 1) failed to stop pollution from impacting the Raccoon River, 2) failed to regulate animal feeding operations, and 3) failed to set numeric stream and water quality standards.

The environmental plaintiffs also ask that the court to declare the Iowa Nutrient Reduction Strategy as null and void under the public trust doctrine and to enjoin all animal feeding operations in the Raccoon River watershed. If granted, the first request would give the green light to have judges essentially suspend both the legislature and the executive branches of government. The second request, if granted, would plunge rural Iowa into an immediate economic depression.

Because the case was filed against the State of Iowa, the duty of defending the State fell to  the Iowa Attorney General. Jeffrey Thompson and Jacob Larson are the attorneys who will argue and who have drafted the briefs. One month after filing, the State filed a motion to dismiss the environmental groups’ lawsuit. Relying on clear U.S. Supreme Court precedent, the Attorney General’s motion to dismiss argues first that the environmental groups lack legal standing to file the lawsuit because they cannot casually link their alleged injury to the actions of the political actors that they sued. In other words, the political defendants that were sued were not the ones who are allegedly causing the pollution. Second, the Attorney General argues that the lawsuit unlawfully asks the district court to usurp the role of the legislative and executive branches of government and that the Iowa Constitution delegates those branches of government the power to enact and administer environmental laws by the Iowa Constitution and not the judiciary. Finally, the Attorney General’s motion states that the environmental groups must first exhaust their rights under Iowa’s Administrative Procedures Act if they want new regulations.

When the motion to dismiss was filed I was quite confident that the court would dismiss the case. I was in for a surprise.

On September 10, 2019, the District Court denied the State’s motion to dismiss. The judge ruled:

• ICCI had standing and did not need to meet other prudential requirements—causal connection or redressability elements— previously recognized by the Iowa Supreme Court;
• The injunctive relief sought by ICCI—including a court order directing the legislature to create, amend, or repeal certain statutes—did not present a political question or violate the separation of powers;
• ICCI’s requested declaratory relief did not violate the political question doctrine, even though the State never argued otherwise;
• ICCI was not required to exhaust administrative remedies because it is not challenging agency actions, but rather, statutes that limit the executive branch agencies.

The State then sought interlocutory appeal on October 1, 2019. The application was granted on November 4, 2019 by Justice Edward Mansfield.  ICCI and Food & Water filed a motion for expedited briefing on November 12, 2019. On November 15, 2019 Chief Justice Mark Cady passed away unexpectedly.  Expedited briefing was ordered on December 2, 2019 by Acting Chief Justice David Wiggins. Although the timeframe required by the Supreme Court required the Attorney General’s office to work through both the Thanksgiving and the Christmas breaks in order to get the brief completed, the brief was successfully filed on December 27th.  The State argued to the Iowa Supreme Court as follows:

1. ICCI lacks standing.

• The Petition does not demonstrate ICCI’s alleged injuries were caused by the action or inaction of the State (it alleges other private parties are the actors), nor does it demonstrate the alleged injuries will be redressed by the relief sought.
• The district court’s ruling erroneously held these factors do not apply to ICCI’s claims.

2.  The requested injunctive relief raises nonjusticiable political questions or runs afoul of the separation of powers.

• ICCI asks this Court to usurp the role of the legislative and executive branches, seeking a sweeping, court-enforced mandatory remedial plan to reduce nitrogen and phosphorous in the Raccoon River watershed and the suspension of the construction and/or expansion of certain livestock facilities.
• The relief sought requires legislative—not judicial—action. Such relief is squarely precluded by the political question doctrine and separation of powers.

3. The declaratory relief sought is nonjusticiable.

• The claims do not present a real and substantial controversy.
• Because a declaratory judgment would not impact nitrogen or phosphorous levels in the Raccoon River watershed, protect ICCI from the alleged injuries, or compel the State to take certain action, there is no actual controversy appropriate for judicial resolution.

4. Any justiciable claims challenging agency action must proceed according to the requirements of the IAPA.

• The Petition fails to meet these requirements because ICCI has not exhausted administrative remedies and presents an improper programmatic challenge to a broad swath of water quality policies and programs.

The Agricultural Legal Defense Fund filed its brief on January 3, 2020.  I was the lead attorney who signed that brief. A short summary of my arguments is as follows:

1. The limited scope of the political question doctrine applies to and therefore precludes judicial intervention on water quality issues.

• Since 1854 the General Assembly has responded to complex and transforming water quality challenges by pursuing solutions in what has become a substantial body of water law.
• In enacting such laws, the Iowa legislature has acted in response to public desire for major policy changes, federal action, and natural disasters.
• The Iowa legislature has frequently enacted regulatory programs after gathering data and after working with educational institutions and other non-governmental groups.
• Non-governmental groups have even taken a leading role in helping to fund and develop new solutions. In many previous instances, the legislature has either ordered its own studies or relied on voluntary studies to provide guidance and data on what solutions will be effective.
• Plaintiffs’ goal of replacing both legislators and agricultural and environmental researchers and regulators with a district court judge is misplaced and contradictory to the proper role of the judiciary.

2.  The Iowa Nutrient Reduction Strategy melds federal initiatives, the need for analysis and exploration of solutions, and the combination of multiple state agencies and private efforts.

• In 2013, the Iowa General Assembly enacted legislation ordering the Iowa Board of Regents to establish the Iowa Nutrient Research Center (“Research Center”).
• The Research Center, together with funding from other public and private partners has supported much-needed research. Seven such studies were outlined for the benefit of the Supreme Court.
• The brief brought to the court’s attention the critical role in funding and gathering baseline nutrient assessments handled by the Iowa Nutrient Research Education Council (INREC).
• The Nutrient Reduction Strategy is already being implemented with a half a billion dollars in funding. This is more money than the judicial branch is even provided for its operations. It is amazing that the plaintiffs think that the poorly funded judiciary is in a position to run Iowa’s environmental programs.

3. The State has a long history of responding to new water challenges by pursuing productive solutions.

• Outlined the various challanges faced by Iowa (excessive water, drought, floods, contamination) and the legislative process that responded to those challenges.
• Noted that citizen-government partnerships have been central to the development of new policies.

The 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 and the Iowa Turkey Federation filed for leave to file a joint Amici Curiae brief on January 3, 2020.

The Water Works Trustees of the City of Des Moines filed a motion to file an Amicus brief on January 20, 2020. Their brief was a reiteration of the factual claims raised in the original Water Works case with one new legal argument which sought to distance the Iowa Supreme Court’s Water Works decision in 2017 from the ICCI case.

Neil Hamilton et al. on behalf of Drake Law Professors Hamilton, Vestal, Kende and Anderson filed a motion to file an Amicus brief on January 21, 2020.

Gulf Organized Fisheries in Solidarity and Hope, Inc. and Mississippi Commercial Fisheries United, Inc. filed a motion to file an Amicus brief on January 21, 2020. Their brief does not raise any legal issues and fundamentally asks that non-point sources be regulated through the “setting of standard that assure real and measurable results.”

Iowa Farmers Union and Farm Aid filed a motion to file an Amicus brief on January 21, 2020.

The next step is to await an order setting oral arguments. No such order has been filed to date.