Commentary

Water quality ruling wasn’t one of the court’s finest moments

June 23, 2021 8:00 am

The Iowa Supreme Court dismissed a lawsuit June 18 over the state’s water quality. (Creative Commons photo via Pxhere)

Through the long arc of history, the Iowa Supreme Court has developed a reputation for judicial courage that often puts it ahead of many other courts when crafting groundbreaking decisions before important legal concepts become widely accepted.

The issues have been meaty, and controversial, especially here in the middle of America. Iowa has been a leader with landmark rulings on slavery, school desegregation and gay marriage.

But June 18, the Supreme Court passed up the opportunity to add to its legacy. In time, history will tell us just how far-reaching this latest decision turns out to be, legally and environmentally.

In a 4-3 ruling, the justices avoided the growing problems from pollution of Iowa’s rivers and lakes. This is caused by the application onto corn and soybean crop ground of vast amounts of fertilizer and manure from large animal feeding confinements.

The ruling came in a lawsuit filed against the state by two nonprofit social justice organizations, Iowa Citizens for Community Improvement and Food & Water Watch.

Their lawsuit says the state has not met its legal duty to protect the rivers and streams from pollution. The territorial and state governments have been holding these waterways in trust for the use and enjoyment by all people for more than 230 years. The lawsuit accuses the state of abdicating this duty in favor of supporting the private interests of farmers.

The state, on the other hand, says the water quality issue is a political one that needs to be solved by the Legislature, not by the courts.

Agricultural runoff sometimes makes it impossible for people to swim safely at our beaches or in many lakes and rivers. The contamination drives up treatment costs for municipal water systems in places like Des Moines — or increases the health risks for people in towns that cannot afford to upgrade their treatment facilities.

The lawsuit was filed in 2019. The state asked the Supreme Court to intercede when the trial judge refused to dismiss the case.

The fight drew legal briefs from many farm interests, the Des Moines Water Works, Gulf of Mexico fishing interests and four prominent lawyers at the Drake University Law School — ag law expert Neil Hamilton, constitutional law scholar Mark Kende, and Jerry Anderson and Allan Vestal, the school’s current and former deans.

Their brief offered a stinging analysis of the state’s case. They urged the justices to tread carefully around the legal concept called the political question doctrine. Broadly speaking, the doctrine means courts avoid adjudicating political questions. But not every matter touching on politics is a political question, the professors said.

Instead, the doctrine is appropriate only when the Constitution specifically designates an issue to be decided by the legislative or executive branches. “Unless the court carefully limits the scope of this doctrine, it can be used to avoid judicial action on any controversial issue,” the brief said.

The professors then provided an Iowa history lesson:

“This court has decided many important constitutional cases that could be considered very ‘political’ in nature. The court’s first reported decision [in 1839, when Iowa was a territory] dealt with perhaps the most controversial political issue ever presented to American courts, that of property in slaves.

“Due to the inherently ‘political’ nature of the issues presented, this court could have left the matter to the legislature to determine. Instead, the court vindicated the constitutional rights of a slave from Missouri working in Iowa by identifying a state constitutional basis for protections not yet recognized by the state legislature.”

The brief continued: “In the landmark school desegregation case of Clark v. Board of Directors [in 1868], this court was urged to defer to the elected school board to exercise its own discretion regarding school attendance, and the court was reminded that current ‘public sentiment’ favored segregation. Nevertheless, the court acted to uphold the constitutional right of Susan Clark to attend the public school in Muscatine.

“Most recently [in 2009], the court did not refuse to protect the fundamental rights of same-sex couples in Varnum v. Brien … merely because it involved a matter of public controversy.”

The brief added: “Because the current case is based on a fundamental right embodied in the public trust doctrine, Iowa courts should be able to rule on whether the action or inaction of the political branches have violated those principles.”

But the state argues that courts should not “second-guess the wisdom of the Legislature” in dealing with water quality issues. But the professors said the claims in this case are based on the public trust doctrine, which represents an important constitutional limitation on legislative power.

“This case raises the fundamental question of whether the state can allow private interests to trump the paramount rights of the public to the use of their waters,” the Drake lawyers wrote. “… The state cannot wash away the public trust doctrine and its protections for citizens … simply by labeling the water quality issues involved in this case as ‘political questions.’”

Water questions have vexed Iowa for much of the 21st century. Iowa’s current effort to reduce fertilizer and manure pollution, called the nutrient reduction strategy, was adopted in 2013. This strategy does not require farmers to reduce pollution moving from their fields into Iowa’s waterways. For this reason, progress has been quite limited.

The plaintiffs wanted the court to set aside the voluntary measures and require the state to impose nitrogen and phosphorus limits on grain and livestock producers in the Raccoon River watershed. They also asked for an order prohibiting construction of new or expanded animal feeding operations in the watershed, which provides drinking water for about 1 in 6 Iowans.

The Supreme Court declined: “Lest we be misunderstood, we agree that the petition describes a real environmental problem. … But we are a court, and we would be stepping outside our role to take on this matter as presented to us by these plaintiffs.”

This is not an issue the court should walk away from.

If Iowa’s voluntary pollution reduction strategy is putting the interests of farmers ahead of the constitutional rights of all Iowans, then the court has the ability, as well as the responsibility, to act — just as the court has been doing since Iowa’s earliest days.

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Randy Evans
Randy Evans

Randy Evans is executive director of the Iowa Freedom of Information Council, a 43-year-old nonprofit education and advocacy organization that works for improved government transparency and citizen accountability. He can be reached at [email protected]

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