March 2019

March 2019

New Iowa Lawsuit Seeks Mandatory Agricultural Pollution Controls

On March 27, 2019, two environmental groups—Iowa Citizens for Community Improvement and Food and Water Watch—filed a petition in state court seeking injunctive and declaratory relief against the State of Iowa, the Department of Natural Resources and others. It’s not the Des Moines Water Works lawsuit, but it is another legal action asserting that agricultural activity has significantly impaired the quality of the Raccoon River. As compared to the Des Moines Water Works lawsuit, however, the new lawsuit has different legal claims, different parties, and a new venue. It’s a whole different approach to a similar allegation.

The petition states that a meandered portion of the Raccoon River is “impaired for nitrate” because it does not meet the Class C drinking water standards. It also alleges that increased nitrate levels result in adverse health risks to the people of Iowa and increased costs to Des Moines Water Works, which passes those costs to its customers. The petition contends that the Iowa Nutrient Reduction Strategy’s voluntary approach for controlling nonpoint source pollution (affirmed by the passage of SF 512 in 2018) has allowed nitrogen and phosphorus discharges from agricultural sources, including animal feeding operations, to “substantially impair recreational and drinking water use.” Specifically, the lawsuit contends that the State has “abdicated control in favor of the interests of private parties and has allowed agricultural sources to discharge nitrogen and phosphorus without restriction” into the Raccoon River.

Continue reading here.

Law Offers Continued Protection to Agricultural Production Facilities

Iowa has a new agricultural production facility trespass law. This new law—effective March 14, 2019—was passed shortly after a federal district court declared unconstitutional the Iowa Agricultural Production Facility Fraud statute enacted in 2012. These so-called “ag-gag” laws are designed to protect agricultural producers from unauthorized and arguably dangerous intrusion. Opponents contend that these laws violate the First Amendment by preventing whistleblowers from conducting undercover investigations at animal production facilities. Ultimately, the courts will decide the merits of each position. But final answers will not come soon. The U.S. Supreme Court may ultimately have the final word. 

The new Iowa law, Senate File 519, provides that people commit “agricultural production facility trespass” if they "use deception to (1) gain access to or (2) obtain employment with an agricultural production facility “with the intent to cause physical or economic harm or other injury.” The new crime is punishable as a serious misdemeanor for the first offense and an aggravated misdemeanor for subsequent offenses. Those who conspire to commit the crime can also be prosecuted.

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Justice Department Will Argue Against ACA on Appeal

The United States Justice Department has changed its position and is now supporting the position that the Affordable Care Act (ACA) was rendered unconstitutional when Congress set the individual shared responsibility payment to zero in the 2017 Tax Cuts and Jobs Act.

On December 14, 2018, United States District Court Judge Reed O’Connor ruled that when Congress set the individual shared responsibility payment to zero, beginning in 2019, it invalidated the Affordable Care Act in its entirety. Texas v. United States, No. 4:18-cv-00167-O (N.D. Tex. Dec. 14, 2018). Although the federal government filed a notice of appeal with the Fifth Circuit Court of Appeals on January 4, 2019, to challenge the Texas court's decision, it reversed course on March 25, 2019. Assistant Attorney General Joseph Hunt filed a letter with the United States Court of Appeals for the Fifth Circuit stating that the Department of Justice had "determined that the district court's judgment should be affirmed." The letter states that the United States intends to file a brief on the appellees' schedule, in support of the district court's ruling.

Continue reading here.



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