Iowa Supreme Court ruling halts lawsuit that challenged whether the state does enough to protect Raccoon River

Donnelle Eller
Des Moines Register

The Iowa Supreme Court on Friday stopped a lawsuit that claimed the state has failed to adequately protect the public’s interest in the Raccoon River, a major water source for the Des Moines metro.

In a 4-3 decision, the court’s majority said the suit raised political questions that lawmakers, not the justices, should decide.

"We … leave this dispute where it stands at present: with the branches of our government whose duty it is to represent the public," Justice Edward Mansfield wrote in the opinion. "In the end, we believe it would exceed our institutional role to 'hold the state accountable to the public.'"

It was a significant setback for the environmental groups, Iowa Citizens for Community Improvement and Food & Water Watch. They have sought to force state regulatory oversight of farm runoff, which could set a precedent for growers across the nation.

The environmental groups said they were "considering all options moving forward" but declined to specify what they might entail.

The groups said state lawmakers have failed to "protect Iowans’ right to clean water as provided by the Iowa Constitution."

"Until further action is taken, industrial agricultural runoff will continue to pollute the river unimpeded, and Iowans’ right to clean water will remain a right without a remedy," the groups said in statement. "We speak for many people across the state of Iowa when we say that we are deeply disappointed.”

The Iowa Attorney General's office declined to comment Friday, referring questions to the state agencies named in the lawsuit. The Iowa Department of Natural Resources also declined to comment on the ruling, saying it speaks for itself.

Iowa Agriculture Secretary Mike Naig said the Supreme Court "got it right," adding that the lawsuit was "unwarranted" and did nothing to advance the state's water efforts. Its primary program is the Iowa Nutrient Reduction Strategy, which encourages farmers to voluntarily adopt conservation practices that reduce nitrogen and phosphorus runoff from their operations.

"The best way to achieve the goals outlined in the Iowa Nutrient Reduction Strategy is to work alongside farmers, landowners and our public and private partners to add science-based soil health and water quality practices to the landscape," Naig said in a statement.

The environmental groups filed the suit in 2019 against the state, several state agencies, boards and officials, saying the strategy has failed to improve the state's water quality and that more forceful action is needed. They contended that the state had abdicated its responsibility to protect residents' right to clean water.

The lawsuit focused on the Raccoon River, a source of drinking water for 500,000 residents in Des Moines and a dozen more cities, towns and rural areas. American Rivers, an influential Washington, D.C., environmental advocacy nonprofit, recently named the Raccoon one of the 10 most endangered rivers in the nation.

More:Agricultural runoff puts Iowa's Raccoon River on list of 10 most endangered nationally, group says

A 2019 district court ruling turned back a challenge to the lawsuit and allowed it to proceed. The state, represented by the Iowa Attorney General's Office, appealed to the Supreme Court. Friday's ruling reversed the lower court's decision, saying the environmental groups lacked standing in the case.

"That's kind of a tough one to swallow," said Neil Hamilton, a Drake University professor emeritus of law. "If these groups with thousands of members who live in Des Moines and along the Raccoon River don't have standing, then who does?"

Court: Plaintiffs sought to entangle courts in 'overseeing the political branches of government'

The environmental groups claimed the state has violated the public trust doctrine — based on the idea that the state is the steward of Iowa's natural resources — and that the court should direct the state to "protect the public’s recreational and drinking water use."

Des Moines Water Works, which draws much of its water from the Raccoon, said in a filing that agricultural pollution has "created serious public health and water treatment challenges."  

Given increased harmful algal blooms resulting from the nutrients leaching into the river, the utility is considering developing alternative sources of water — an undertaking it said will cost "tens of millions of dollars" for central Iowa residents.

The environmental groups asked the court to require the state to create a "mandatory remedial plan" that would reduce the flow into the river of nitrogen and phosphorous from animal feeding operations. They also sought a moratorium on new animal feeding operations in the Raccoon River watershed until the plan was implemented.

But Mansfield, joined in his opinion by Chief Justice Susan Christensen and Justices Thomas Waterman and Matthew McDermott, wrote that the groups failed to establish that the state had caused them and their members a "concrete injury" that a favorable court decision was likely to redress.

It's "speculative that a favorable court decision in this litigation 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 said. "Such general declarations do not provide any assurance of concrete results, although they do herald long-term judicial involvement." 

The opinion said the groups' request to "hold the state responsible" — using the environmentalists' words — goes "beyond the accepted role of courts" and "would entangle us in overseeing the political branches of government."

Justices Brent Appel, Christopher McDonald and Dana Oxley each wrote a dissenting opinion.

Hamilton, the Drake law professor, said that while the court's majority wanted to avoid additional litigation,  the dissenting justices agreed the "case should move forward, in large part because the state had conceded" the groups had standing and "the merits of the public trust doctrine were not in question."

Footnote cites 'real environmental problem'

In an unusual footnote, the Supreme Court said the majority agreed that the lawsuit "describes a real environmental problem, both in Iowa and nationally."

From 2019:Groups sue Iowa, claim farm fertilizer runoff hurting Raccoon River, Des Moines drinking water

Crews from Synergy Contracting help Des Moines Water Works raise flashboards in the Raccoon River on Thursday, June 17, 2021. The 41 boards raise the water level around an intake that pulls in 50 million gallons a day to serve customers around the metro.

The environmental groups say the state has allowed for the rapid expansion of hog farms and placed few restrictions on pollution from agricultural operations, allowing bacteria, nitrates and phosphorous from manure and fertilizer to pollute the river.

It's resulted in a water-quality crisis, the groups say. This year marks the third in a row that the Des Moines River has experienced harmful algae blooms that can create a toxin, called microcystins, that poses a particular hazard, in drinking water, to babies and toddlers.

Des Moines Water Works has limited ability to treat microcystins, meaning that at times it has had to forgo drawing water from the Des Moines. At the same time, it and other public water utilities are struggling with high demand and reduced river levels due to the deepening drought.

State officials have said that improving water quality takes time. A bill signed into law three years ago provides $282 million over 12 years for water quality initiatives. It was extended this year, providing a total of $320 million through 2039. Altogether, $331 million will go to conservation practices over two decades.

More: Polk County has an aggressive plan to clean up its water. Could it work for the rest of Iowa?

But the state has avoided direct regulation of farm runoff. In December, Iowa Solicitor General Jeffrey Thompson, representing the state in oral arguments before the Supreme Court on the case, said that "agriculture is the bedrock of who we are and what we are as a state, historically, culturally and economically.

"The regulation of agriculture is one of the most important and also one of the most difficult challenges faced by the state," he said.

Brent Newell, an attorney representing the environmental groups, said in his argument that the public trust doctrine is not limited to protecting recreational uses such as fishing or boating, and invests the state with the power to ensure water quality. Courts, he said, have found its definition is "broad and unbound."

"And that's what we're seeking really here," Newell told the justices. "We're seeking relief for the public's use of the Raccoon River."

The suit is not the first to address the issue. In 2015, the Des Moines Water Works unsuccessfully sued drainage districts in northwest Iowa, seeking regulations that would curb the nitrogen and phosphorus runoff that's funneled from farm fields through underground drainage into Iowa's waterways.

More:With drought concerns growing, Des Moines Water Works asks its 500,000 customers to cut back on watering lawns

Donnelle Eller covers agriculture, the environment and energy for the Register. Reach her at deller@registermedia.com or 515-284-8457.