On Friday, September 23, 2022, Reuters withdrew an article “How U.S. ethanol plants are allowed to pollute more than oil refineries.” Reuters cited “flawed interpretation of data on ethanol-plant pollution and fuel-production capacity” that “led to inaccurate estimates of carbon emissions for individual ethanol plants named in the story.” Ever since ethanol plants first started popping up in the Midwest it has been popular to attack them as bad for the environment. There has never been a lack of flawed data to rely on to support the attacks on one of the most important markets for Midwest corn growers. When these critical articles first appeared I remember doing my own calculations to see if there was any merit in these articles. My conclusion was that ethanol plants are better for the environment than petroleum alternatives and that without the ethanol market Midwest farms would face massive financial losses.
Hog Producer wins a dismissal of lawsuit filed by neighbor alleging Clean Water Act and Solid Waste Violations.
On March 27, 2020, Northern District of Iowa Federal District Court Judge C.J. Williams granted a motion for summary judgment in favor of New Fashion Pork and BWT Holdings and against Gordon Garrison, a neighbor. Mr. Garrison had filed a citizen action suit in 2018 alleging that New Fashion Pork had violated the Federal Clean Water Act and RCRA (Solid Waste Disposal Act) and other claims by misapplying hog manure on Emmet County, Iowa land owned by BWT Holdings and surrounding the New Fashion Pork hog barn. The barn had gone into operation in early 2016.
New Fashion Pork filed a motion for summary judgment asking that the Court dismiss all claims. New Fashion Pork’s attorneys argued that Mr. Garrison failed to present any evidence that the violations were imminent and ongoing, requirements under both the Clean Water Act and RCRA for a citizen action.
The Court agreed, noting that Mr. Garrison had failed to provide any evidence that the violations were imminent and ongoing. The Court observed that Mr. Garrison’s water tests “do not show a pattern of ongoing violations” and that there was “no evidence that any increased level of nitrates correlates to once or twice-yearly manure application.” The Judge also noted that “Indeed the only pattern the Court is able to discern in plaintiff’s evidence is a slight decrease in nitrate levels from 2016 to the end of 2018, the period during which plaintiff alleges that defendants violated RCRA and the CWA.”
The Court also found that the plaintiffs failed to designate any expert to testify about the nitrate levels and that even the expert opinions that Mr. Garrison’s lawyers filed after the deadlines expired did not tie nitrate levels to manure application.
Turning to the allegation by Mr. Garrison that New Fashion Pork’s “over-application of manure constituted open dumping in violation of RCRA” the Court noted that Mr. Garrison had again failed to provide any evidence and dismissed that claim as well.
The Court declined to exercise jurisdiction over state law claims. The Court had previously dismissed other claims plaintiff filed, finding they had no merit.
New Fashion Pork and BWT Holdings were represented by James Pray, James White, and Jennifer Lindberg of the BrownWinick Law Firm.
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:
- 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:
- 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.
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I am closely watching an environmental lawsuit filed on March 27, 2019, in the Polk County, Iowa district court against the State of Iowa and several officials and departments. The lawsuit was filed by Iowa Citizens for Community Improvement (ICCI) and Food & Water Watch, two environmental groups. 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.
As a legal basis, the environmental plaintiffs claim first that citizens have been denied their substantive due process rights because the State failed to protect those citizens from harm, and second that those citizens are beneficiaries entitled to protection under a “public trust doctrine.” That doctrine holds that certain property rights, in this case the meandered portion of the Raccoon River, have been entrusted to the State for the benefit of its citizens.
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 requests are so outlandish I really don’t see this lawsuit going anywhere and I wonder why the attorneys who signed on to prosecute the case bothered to get involved.
Because the case was filed against the State of Iowa, the duty of defending the State fell to Tom Miller, the Iowa Attorney General. Tom Miller has recently been under fire for joining in lawsuits on behalf of progressive causes and the legislature recently passed legislation to strip him of that authority.
Regardless, the State of Iowa recently 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.
The last point is ironic in that the Iowa Environmental Council (IEC) and the Environmental Law & Policy Center (ELPC) actually worked for several years to try to get the DNR’s Environmental Protection Commission to enact strict limits for Iowa’s lakes. That effort was denied in February of 2019.
All three of these arguments in favor of a dismissal are clear winners. However, I suspect that this lawsuit is a “long play” and the first of several more challenges.
— James L. Pray
There has been a lot of confusion regarding a “Green New Deal.” The fact that people are now talking about a greenhouse gas reduction measure (regardless of what it really means) is an astounding turn-around from just two years ago when the new administration came to Washington with a pro-coal agenda. Now the winds are blowing in a distinctly different direction yet again. But what is the Green New Deal? Politicians and pundits are quoted saying that the House Resolution 109 would ban cows, cars, trains, air travel, and pay people not to work. I pulled up the proposed Green New Deal law (look it up by clicking the Congressional link above) and noticed several things. First, it is a resolution. As a resolution it really can’t do anything. It is just a statement. To be a law it needs to actually make something illegal, create a bureaucracy that will write rules that will make something illegal, or, conversely, make something that was illegal legal. Here is what the proposed resolution says:
Resolved, That it is the sense of the House of Representatives that—
(1) it is the duty of the Federal Government to create a Green New Deal—
(A) to achieve net-zero greenhouse gas emissions through a fair and just transition for all communities and workers;
(B) to create millions of good, high-wage jobs and ensure prosperity and economic security for all people of the United States;
(C) to invest in the infrastructure and industry of the United States to sustainably meet the challenges of the 21st century;
(D) to secure for all people of the United States for generations to come—
(i) clean air and water;
(ii) climate and community resiliency;
(iii) healthy food;
(iv) access to nature; and
(v) a sustainable environment; and
(E) to promote justice and equity by stopping current, preventing future, and repairing historic oppression of indigenous peoples, communities of color, migrant communities, deindustrialized communities, depopulated rural communities, the poor, low-income workers, women, the elderly, the unhoused, people with disabilities, and youth (referred to in this resolution as “frontline and vulnerable communities”)
You can take a breath and know that this resolution does nothing it is claimed to do. It is about as effective as your New Year’s resolution where you said you were going to lose 40 pounds by March 1st, be able to lift 200 pounds, and run a mile in seven minutes.
To be fair, the resolution adds some projects:
(2) the goals described in subparagraphs (A) through (E) of paragraph (1) (referred to in this resolution as the “Green New Deal goals”) should be accomplished through a 10-year national mobilization (referred to in this resolution as the “Green New Deal mobilization”) that will require the following goals and projects—
(A) building resiliency against climate change-related disasters, such as extreme weather, including by leveraging funding and providing investments for community-defined projects and strategies;
(B) repairing and upgrading the infrastructure in the United States, including—
(i) by eliminating pollution and greenhouse gas emissions as much as technologically feasible;
(ii) by guaranteeing universal access to clean water;
(iii) by reducing the risks posed by climate impacts; and
(iv) by ensuring that any infrastructure bill considered by Congress addresses climate change;
(C) meeting 100 percent of the power demand in the United States through clean, renewable, and zero-emission energy sources, including—
(i) by dramatically expanding and upgrading renewable power sources; and
(ii) by deploying new capacity;
(D) building or upgrading to energy-efficient, distributed, and “smart” power grids, and ensuring affordable access to electricity;
(E) upgrading all existing buildings in the United States and building new buildings to achieve maximum energy efficiency, water efficiency, safety, affordability, comfort, and durability, including through electrification;
(F) spurring massive growth in clean manufacturing in the United States and removing pollution and greenhouse gas emissions from manufacturing and industry as much as is technologically feasible, including by expanding renewable energy manufacturing and investing in existing manufacturing and industry;
(G) working collaboratively with farmers and ranchers in the United States to remove pollution and greenhouse gas emissions from the agricultural sector as much as is technologically feasible, including—
(i) by supporting family farming;
(ii) by investing in sustainable farming and land use practices that increase soil health; and
(iii) by building a more sustainable food system that ensures universal access to healthy food;
(H) overhauling transportation systems in the United States to remove pollution and greenhouse gas emissions from the transportation sector as much as is technologically feasible, including through investment in—
(i) zero-emission vehicle infrastructure and manufacturing;
(ii) clean, affordable, and accessible public transit; and
(iii) high-speed rail;
(I) mitigating and managing the long-term adverse health, economic, and other effects of pollution and climate change, including by providing funding for community-defined projects and strategies;
(J) removing greenhouse gases from the atmosphere and reducing pollution by restoring natural ecosystems through proven low-tech solutions that increase soil carbon storage, such as land preservation and afforestation;
(K) restoring and protecting threatened, endangered, and fragile ecosystems through locally appropriate and science-based projects that enhance biodiversity and support climate resiliency;
(L) cleaning up existing hazardous waste and abandoned sites, ensuring economic development and sustainability on those sites;
(M) identifying other emission and pollution sources and creating solutions to remove them; and
(N) promoting the international exchange of technology, expertise, products, funding, and services, with the aim of making the United States the international leader on climate action, and to help other countries achieve a Green New Deal
Again, these “projects” are aspirational and certainly don’t eliminate cows, planes, automobiles or trains. In fact, many of these projects can be found in both Republican and Democratic planks. Even if this resolution passes the house, I will wait to see what the Senate is willing to do through 2020, and I bet this goes nowhere until after the next election.
Iowa has not see a great deal of criminal environmental enforcement at either the federal or state level. Nationally, EPA’s civil enforcement under the current administration is down to levels never seen in recent history (by the size of penalties). As an attorney involved in representing industry I can attest to the drop in enforcement actions during the last two years. However, yesterday’s guilty plea by Patrick Schwarte that he had conspired to manipulate waster sample test results to fake compliance with discharge limits under federal law was pursued by the Department of Justice, acting on a tip to the Iowa Department of Natural Resources. The case also predates the 2016 election. Both Mr. Schwarte and his boss Mr. Jay Niday were fired in 2015 after the faked test results were discovered. Mr. Schwarte faces seven years in the federal prison system and a fine of up to $260,000. It is unclear if this is a holdover from the previous administration’s efforts to enforce compliance or if this case is intended to send a message from the current administration. Both municipal and industrial wastewater operators do need to make sure that their operations are strictly above-board and in compliance with the law.
On December 11, 2018, the Environmental Protection Agency and the United States Army Corps of Engineers proposed a new definition of “waters of the United States” (WOTUS) and will soon publish the new definition in the Federal Register for a 60 day comment period. This is step two of the multi-step process that the Trump Administration has been following to reverse the Obama Administration’s efforts to come up with a new WOTUS rule.
What changed? Here is a short summary of the most obvious changes based on the EPA’s own description:
- Ephemeral Streams are no longer jurisdictional. The 2015 and pre-2015 rules definitely included ephemeral streams as jurisdictional even though they do not meet the statutory definition of a navigable water.
- Ditches with ephemeral flows are not jurisdictional. Ditches constructed in upland are not jurisdictional.
- Non-navigable lakes and ponds may not always be jurisdictional.
- Wetlands that do not abut jurisdictional waters or are separated by a berm, and lack a direct hydrological surface connection to jurisdictional waters in a “typical year” are not jurisdictional.
- Groundwater is not WOTUS and this change will delete the “nexus” that typically linked separate wetlands.
Are these material and important changes? Yes. Regardless of whether you are for or against an expansive view of WOTUS, these are real changes and definitely farmer-friendly. Given the current makeup of the United States Supreme Court I predict that the regulations will be easily upheld.
A copy of the pre-publication version of the rule is available here: https://www.epa.gov/sites/production/files/2018-12/documents/wotus_2040-af75_nprm_frn_2018-12-11_prepublication2_1.pdf
James L. Pray
November 15th is the deadline for Farmers to report Ammonia and Hydrogen Sulfide Releases from Animal Waste.
The EPA’s December 18, 2008 final rule exempted most farms from many reporting requirements in CERCLA and EPCRA. Exemptions were created under both EPCRA and CERCLA for emissions from animal waste for CERCLA and for smaller than CAFO-sized facilities under EPCRA.
Waterkeeper Alliance and a number of other citizen groups challenged the final rule in court and on April 11, 2017 the U.S. Court of Appeals for the District of Columbia Circuit struck down the rule. Waterkeepers Allilance v. EPA, 853 F.3d 527 (D.C. Cir. 2017) Barring some last-minute reprieve, the court’s ruling takes effect on November 15, 2017.
As summarized by the EPA: “Starting on this date, farms releasing hazardous substances to air from animal wastes, equal to or greater than their reportable quantities, within any 24-hour period, must notify the NRC. For farms with continuous releases, this means that the initial continuous release notification needs to be made as of the effective date of the Court action (currently November 15, 2017).”
The reason behind the exemption in the first place is that the EPA admits that “there is no generally accepted methodology for estimating emission quantities at this time.” Thus, farmers with operations of any size are in a quandary. Fail to guess correctly and they can be subject to massive fines, penalties and possible imprisonment. The EPA suggests that “farmers may need to report their releases in broad ranges that reflect the high degree of uncertainty and variability of these releases.” Of course, the point of the reports under EPCRA are to alert the local population of a potential hazard. Given the lack of any accepted methodology, the mandated reporting is likely to be fairly useless and time consuming.
The term “flogging a dead horse” means to continue a particular endeavor that is a waste of time as the outcome is already decided. This term is appropriate for the recently publicized Iowa Policy Project (“IPP”) report finding that “drainage districts have the legal authority to enhance pollution control efforts.” To anyone who has even casually followed the Des Moines Water Works case this must come as a real shock. That such a fundamentally unsound report would get as much news coverage as it did is even more shocking.
The first recommendation by IPP is that drainage districts should exercise their “existing statutory authority” to address water quality. Didn’t the writers of the report read the Iowa Supreme Court’s Des Moines Water Works decision? If they had, they would have read this statement in the majority opinion:
The defendants’ lack of statutory authority to regulate farmer nitrate use cuts against revisiting our longstanding precedent, which rests upon the limited existence and powers of drainage districts.
Oddly, the IPP report goes on to quote the dissenting opinion by Justice Cady to support IPP’s recommendation. Of course, a dissent is called a dissent because the writers did not have enough votes for their opinion to have any legal effect.
The IPP report next suggests that drainage districts can use their eminent domain authority for the “expansion of drainage systems.” Some examples provided in the IPP report for this power include wetlands restoration and construction of bioreactors at discharge points. Aside from the fact that wetlands restoration is actually the opposite of what drainage districts are mandated to do, the writers of the report overlooked the simple fact that the power of eminent domain for drainage districts is based on the Iowa Constitution. The Iowa Constitution only grants districts the power of eminent domain “to construct and maintain levees, drains, and ditches.” It would be unconstitutional for a district to condemn farmland for bioreactors, wetlands, or other treatment options.
The IPP report next suggests that state regulators use the “local expertise and outreach available from drainage districts.” This is classic ivory tower wishful thinking. It is clear that the report writers have never tried to find any of these local drainage district water quality experts because if they had they would have quickly discovered that they don’t exist. Most districts don’t even have their own trustees and none have any ability to levy taxes to pay salaries for that activity. For the most part, drainage districts exist purely as legal structures managed solely by the county board of supervisors.
What I fear is that our legislators will read the headlines and think that the IPP has stumbled onto a long-hidden solution to Iowa’s water quality issues. This IPP report will only serve to divert attention from the search for realistic efforts that can make a real improvement to Iowa’s poor water quality.
BrownWinick Law Firm