Iowa Supreme Court Dismisses Attempt to Regulate Agricultural Water Pollution under the Public Trust

Unlike some states, Iowa does not require farmers to mitigate nonpoint source pollution. Instead, Iowa farmers are encouraged to voluntarily implement agricultural water pollution controls. Environmental groups challenged Iowa’s voluntary compliance strategy in court but, on June 18, the Iowa Supreme Court dismissed the lawsuit for lack of standing. The court ruled that the claims raised by the plaintiffs’ lawsuit, which sought to force state environmental agencies to regulate agricultural nonpoint source pollution under the public trust doctrine, are not capable of being resolved by the courts.

In March of 2019, two nonprofit groups, Iowa Citizens for Community Improvement and Food and Water Watch, brought suit against the State of Iowa and various state agencies under the public trust doctrine. The public trust doctrine is a principle dating back to ancient Roman law that requires state governments to hold certain natural resources in trust for the public’s use and enjoyment. Although the exact resources and activity protected by the public trust doctrine vary from state to state, nearly all codifications of the doctrine—including Iowa’s—protect the public’s right to access public waters. The plaintiffs here attempted to “channel the traditional understanding of [the public trust doctrine] in a new direction” by arguing that, as a trustee of state waterways, the state has an affirmative obligation to prevent substantial impairment of navigable waters. Iowa Citizens for Cmty. Improvement v. State, No. 19-1644 2021 WL 2483412, at *17 (Iowa June 18, 2021) (McDonald, J. dissenting).

Iowa is a principal producer of corn, pork, and soybeans in the United States. Inherent to these agricultural practices is extensive fertilizer applications and animal waste, often leading to high nitrates and phosphorus levels in nearby waters. The plaintiffs, who use the Racoon River in Des Moines for drinking water and recreation purposes, argued the state’s voluntary agricultural nonpoint source pollution control policy fails to reduce the amount of fertilizer and hog farm waste flowing into the state’s rivers and streams. Consequently, the plaintiffs alleged Iowa’s voluntary regime causes injury to their health and aesthetic enjoyment of the Racoon River, in addition to financial harm in the form of increased water bills.

The nonprofit plaintiffs in this case sought two remedies from the court. First, they requested a declaratory judgment that the Iowa state government violated the public trust doctrine by failing to protect the public’s use of navigable state waters. Second, the groups asked the court for an injunction to 1) stop the state’s voluntary regulatory program, 2) require the legislature to implement a mandatory regulatory scheme instead, and 3) halt all construction of new and expanding animal operations in the Racoon River watershed until the mandatory regime is in place.

Iowa never substantively challenged the plaintiffs’ attempted expansion of the public trust doctrine; instead, the state moved to dismiss the plaintiffs’ petition for lack of standing—i.e., lack of a sufficient connection to the action being challenged—in April 2019. The district court denied the state’s motion to dismiss. On appeal, the Iowa Supreme Court reversed in a 4-3 decision. The majority determined the plaintiffs did not have standing; these justices reasoned that any declaration from the court would not be certain to redress the plaintiffs’ alleged injury. As the Iowa Supreme Court explained in its analysis of the court’s redressability requirement, “If the court can’t fix your problem, if the judicial action you seek won’t redress it, then you are only asking for an advisory opinion.” Id. at *7. Additionally, they noted that the question of how to regulate pollution from farms is ultimately a political one, placing it beyond the court’s jurisdiction.

Next, the court addressed the plaintiffs’ request for injunctive relief. The court majority acknowledged the pervasive environmental problem of agricultural nonpoint source pollution in a footnote, but explained that regulating agricultural water pollution necessarily involves balancing stakeholder interests, which is a legislative function. As a result, the court held that the construction of a nonpoint source pollution management regime is nonjusticiable because the court could not provide meaningful relief without usurping the legislature’s role and, thus, violating the separation of powers. While one of the three dissenting opinions cites cases from Wisconsin and California in support of the idea that the state has an affirmative duty to preserve water quality under the public trust doctrine, the four justices joining in majority refused to reach the merits of the plaintiffs’ public trust argument. (Notably, however, one of the dissenting justices accused the majority of substantively ruling that “protecting against pollution is [definitely] not alienating or limiting access to navigable waters.” Id. at *22 (Oxley, J. dissenting).) In defense of its position, the majority cites case law from Minnesota, Washington, Arizona, and New Mexico which suggests that public trust litigation seeking to force an agency to regulate environmental harms more stringently is a nonjusticiable political question. Accordingly, the majority reversed and remanded the case back to the district court with directions to dismiss for lack of standing.

This decision by Iowa’s highest court invites the question: how far can public trust-based standing be stretched before treading into political waters? Though the answer remains murky, future litigation may forge legal strategies.

For more on state obligations under the CWA, see the NSGLC’s Fact Sheet on Management of Nonpoint Source Pollution under the CWA.