Iowa Supreme Court Dismisses Lawsuit Requesting Mandatory Agricultural Pollution Controls
On June 18, the Iowa Supreme Court—in a 4-3 decision—dismissed a water quality lawsuit filed against the State of Iowa[i] by two social justice groups, Iowa Citizens for Community Improvement and Food and Water Watch. The lawsuit, filed March 29, 2019, alleged that the State of Iowa had violated the public trust doctrine by failing to protect the public’s recreational and drinking water use of navigable waters. The district court had denied the State’s early motion to dismiss, but, on review, the Supreme Court reversed, finding that there was no indication that a favorable outcome was likely to redress the plaintiffs’ alleged grievances. Specifically, the Court ruled that that the plaintiffs lacked standing and that their petition presented a nonjusticiable political question.
Plaintiffs alleged in their petition that their members are beneficiaries under the “public trust doctrine” and that the State had breached its duty to protect the public use of navigable waters and to prevent their substantial impairment. As a result of the State’s alleged breach of this trust, the plaintiffs alleged they were injured by an increased cost of drinking water and a reduced ability to kayak, swim, and enjoy views of the Raccoon River. They alleged that the violation of the public trust doctrine constituted a taking of their constitutionally-protected property interest in the public lands.
The petition sought a general declaration that the State had violated this public trust by failing to protect the public’s recreational and drinking water use of navigable waters. It also sought a declaration that a 2018 State law declaring that the voluntary nutrient reduction strategy is “in the interest of the people of Iowa” is “null and void as inconsistent with the public trust doctrine.[ii]” The petition asked the Court to require the State “to adopt and implement a mandatory remedial plan that requires agricultural nonpoint sources and confined animal feeding operations to implement nitrogen and phosphorus limitations in the Raccoon River watershed.” Finally, until such remedial plan was implemented, the plaintiffs sought an injunction restricting the construction and operation of new medium and large animal feeding operations and confined animal feeding operations in the Raccoon River watershed.
Public Trust Doctrine Overview
Writing for the majority, Justice Mansfield began with a thorough discussion of the public trust doctrine. The Court explained that while the doctrine affirms that the State is a steward of publicly-owned natural resources, the doctrine “has a narrow scope.” Although the doctrine originally applied to the beds of navigable waters, it has been expanded to include the public’s use of lakes and rivers for recreational purposes. The limited doctrine thus protects access to public waters, and it limits the State’s power to dispose of land held in the public trust. These two protections, the Court noted, could be summed up as “open access” and “no private alienation.”
The Court then summarized the limitations of the public trust doctrine. Historically in Iowa, the doctrine has not allowed courts to weigh different uses or second guess regulatory decisions made by elected bodies. For example, in Bushby v. Washington County Conservation Board, 654 N.W.2d 494 (Iowa 2002), the Court rejected an attempt to apply the public trust doctrine to enjoin the cutting of trees that had been approved by an elected board of supervisors. The Court noted that the Minnesota Supreme Court had recently refused to apply the public trust doctrine to claims that the Minnesota Department of Natural Resources had mismanaged water pollution.
Despite reviewing the public trust doctrine, the Court explained that the merits of the plaintiffs’ legal claims (and the application of the doctrine) were not at issue on the motion to dismiss. As such, the only questions for the Court to answer at this point in the litigation were whether the plaintiffs had standing and whether the case was justiciable or could be heard by the Court.
Turning to those questions, the Court first explained that to have standing in a case in Iowa a complaining party must (1) have a specific personal or legal interest in the litigation and (2) be injuriously affected. The Court stated that the standing question, which is a rule of judicial restraint, is decided separately from and before a decision on the merits. The Court explained that when an alleged injury arises from the government’s alleged unlawful failure to regulate an activity, the plaintiff must establish (1) a causal connection between the injury and the conduct complained of and (2) that the injury will likely (not speculatively) be redressed by a favorable decision (quoting from Godfrey v. State, 753 N.W.2d 413, 421 (Iowa 2008), relying on Lujan v. Defs. Of Wildlife, 504 U.S. 555, 561 (1992)).[iii]
Here, the Court found that it was “speculative that a favorable court decision would lead to a more aesthetically pleasing Raccoon River, better swimming and kayaking on the river, and lower water rates in the Des Moines metropolitan area.” The Court stated that broad, general declarations—as sought by the plaintiffs through its requests for declaratory relief—would require long-term judicial involvement without any assurance of concrete results.
As for the requested injunctive relief, the Court noted that the plaintiff admitted that the requested mandatory remedial plan could only be accomplished through legislation. The Court pointed out that Iowa Const. art. III, § 1 prohibits the judicial branch from exercising any function properly belonging to the legislative or executive branch. In specifically addressing the question of standing, the Court explained that it was not clear what the requested remedial plan might entail or whether even a significant reduction in fertilizer use by farmers, for example, would bring about better swimming, kayaking, or viewing of the river. Because the petition did not set forth sufficient information to demonstrate that a favorable outcome would actually redress the plaintiffs’ alleged wrongs, the Court dismissed the claims for lack of standing.
The Court then turned to the question of justiciability. The Court explained that under the political question doctrine, Iowa courts should abstain from determining nonjusticiable political questions. Under the six-part test set forth in Baker v. Carr, 369 U.S. 186 (1962), a political question may exist if one or more of the following considerations is present:
- a textually demonstrable constitutional commitment of the issue to a coordinate political department
- a lack of judicially discoverable and manageable standards for resolving the issue
- the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion
- the impossibility of a court’s undertaking independent resolution without expressing a lack of the respect due coordinate branches of government
- an unusual need for unquestioning adherence to a political decision already made
- the potentiality of embarrassment from multifarious pronouncements by various departments on one question
The Court applied this test to the plaintiffs’ allegation that the public trust doctrine “imposes a duty on the State to pass laws that regulate those waters in the best interests of the public.” The Court found that this request for relief implicates “a lack of judicially discoverable and manageable standards.” The Court explained:
Stating that the legislature must “broadly protect the public’s use of navigable waters” provides no meaningful standard at all. Different uses matter in different degrees to different people. How does one balance farming against swimming and kayaking? How should additional costs for farming be weighed against additional costs for drinking water? Even if courts were capable of deciding the correct outcomes, they would then have to decide the best ways to get there. Should incentives be used? What about taxes? Command-and-control policies? In sum, these matters are not “claims of legal right, resolvable according to legal principles, [but] political questions that must find their resolution elsewhere.”
The Court went on to note that even if the public trust doctrine mandated a particular outcome, the question would immediately arise as to how to get there. The Court posited that it would seem impossible for a court to grant meaningful relief “without expressing a lack of the respect due coordinate branches of government.” The Court continued that if it were to order the legislature to adopt and implement a mandatory remedial plan, such a directive would raise separation of powers concerns. Likewise, an indefinite number of policy choices would need to be made.
“Inevitably,” the Court quipped, “the legislature would have to send its emissaries to 500 Mulberry Street or 1111 East Court Avenue in Des Moines.” The Court stated that this procedure would elevate the judiciary to a position superior to that of the legislature. The Court also noted that the political branches of Iowa have, at least initially, made an intentional policy decision to implement the voluntary Nutrient Reduction Strategy, rather than the plaintiffs’ requested regulatory approach. If the case were to proceed, the Court stated, it would put the judiciary in the position of commandeering additional state funding for intensive regulation of nitrogen and phosphorus in yet-to-be-determined ways.
Finally, the Court reviewed cases from the courts of other states to support its conclusion that “environmental public trust litigation is a nonjusticiable political question.” The Court concluded:
Where the plaintiffs have put forth claims that we cannot meaningfully resolve as a court using accepted methods of judicial decision making, we should invoke the political question doctrine. We do so here and leave this dispute where it stands at present: with the branches of our government whose duty it is to represent the public. In the end, we believe it would exceed our institutional role to “hold the State accountable to the public.” Those words, used by the plaintiffs to describe what they ask of us, go beyond the accepted role of courts and would entangle us in overseeing the political branches of government.
The Court thus reversed and remanded for the district court to dismiss the case for lack of standing and nonjusticiability.
Three Justices—Appel, McDonald, and Oxley—filed separate dissents from the majority opinion.
In his dissent, Justice Appel borrowed from former U.S. Supreme Court Justice Harry Blackmun in his dissent from the pivotal federal environmental standing case, Lujan v. Defenders of Wildlife. The majority, Justice Appel argued, “chooses to bring what Justice Blackmun called ‘slash-and-burn’ to Iowa when reviewing a motion to dismiss a suit alleging injury in violation of the public trust doctrine.” Justice Appel argued that the majority failed to recognize that state courts are courts of general jurisdiction, not bound by Article III standing requirements governing federal courts. He said he had no interest in “closing down access to the courts with the ‘gotcha’ applications of ‘redressability’ and ‘causation’ announced in Lujan and inconsistently applied thereafter, particularly when the newly discovered elements of standing are astonishingly applied at the motion to dismiss stage of litigation to dismiss cases involving important state constitutional issues.”
In response to the majority’s discussion of the public trust doctrine, Justice Appel asserted that the public trust doctrine should apply to pollution of navigable waterways in a fashion that prevents or significantly impairs recreational activities and the use of water for drinking purposes.
Justice McDonald’s dissent focused on the procedural posture of the case and argued that the plaintiffs had sufficient standing to pursue at least some form of limited relief. Acknowledging the “host of legitimate concerns” raised by the majority regarding the constitutionality, feasibility, and efficacy of potential remedies, Justice McDonald asserted that it was nonetheless not appropriate to dismiss the lawsuit at this early stage.
Similarly, Justice Oxley argued in dissent that it was too early to dismiss the case. “While I share the majority’s doubt as to how far the plaintiffs can ride their public trust doctrine horse, expediency is not a basis for dismissing cases.” Justice Oxley stated that although the State chose not to challenge the breadth of the public trust doctrine at this stage of litigation, the majority held that no cause of action existed under the public trust doctrine for private citizens. “While giving lip service to the doctrinal notion that ‘standing does not depend on the legal merits of a claim,’ the majority necessarily addresses the merits by basing its standing holding on the premise that the public trust doctrine does not provide the protections the plaintiffs allege.”
This dismissal closes the door on another attempt to employ the courts to require the regulation of non-point source pollution.[iv] In a footnote at the end of the case, the majority acknowledged the “real environmental problem, both in Iowa and nationally,” described by the plaintiffs. “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.”
Attention will likely turn to Washington D.C. as the new Administration has pledged to “focus on improving water quality in a comprehensive way.” The EPA’s fiscal 2022 budget states, “EPA and the USDA will work collaboratively in high priority, focused watersheds to address agricultural nonpoint source pollution. The goal of this collaboration is to coordinate agency efforts, thereby increasing conservation on the ground to better protect water resources from nonpoint sources of pollution, including nitrogen and phosphorus.”[v] On June 9, the EPA and the U.S. Army Corps announced its intention to repeal and replace the Navigable Waters Protection Rule, the Clean Water Act “waters of the United States” definition implemented by the agencies in 2020.
[i] The petition named the following as defendants: State of Iowa, Department of Natural Resources, Bruce Trautman (acting Director of DNR), Environmental Protection Commission, Mary Boote, Nancy Couser, Lisa Gochenour, Rebecca Guinn, Howard Hill, Harold Hommes, Ralph Lents, Bob Sinclair, Joe Riding (Commissioners of EPC), Natural Resource Commission, Marcus Branstad, Richard Francisco, Laura Hommel, Tom Trickett, Phyllis Reimer, Dennis Schemmel, and Margo Underwood (Commissioners of Natural Resource Commission), Department of Agricultural and Land Stewardship, and Michael Naig, Iowa Secretary of Agriculture
[ii] In the 2018 session, the Iowa legislature enacted section 20 of Senate File 512, making the Iowa Nutrient Reduction Strategy the state policy for nitrogen and phosphorus water pollution controls. 2018 Iowa Acts ch. 1001, § 20 (codified at Iowa Code § 455B.177(3) (2019)).
[iii] The Court has interpreted the “injuriously affected” prong of standing as incorporating the Lujan three-part test ((1) injury in fact, but also that the injury in fact (2) is fairly traceable to the defendants’ conduct and (3) is likely to be redressed by a favorable decision).
[iv] See Bd. of WaterWorks Trs. of Des Moines v. Sac Cnty. Bd. of Supervisors, 890 N.W.2d 50 (Iowa 2017); Bd. of Water Works Trs. of Des Moines v. Sac Cnty. Bd. of Supervisors, 2017 WL 1042072 (N.D. Iowa Mar. 17, 2017). See also Gulf Restoration Network v. McCarthy, 783 F.3d 227, 243–44 (5th Cir. 2015).
[v] EPA Fiscal Year 2022 Budget, p. at https://www.epa.gov/sites/production/files/2021-05/documents/fy-2022-epa-bib.pdf (accessed June 21, 2021).
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