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