The Iowa Environmental Council charged yesterday that Iowa Farm Bureau is misusing the court system to “intimidate us and keep us from our work.” The allegation relates to a lawsuit Farm Bureau filed last year to block new water quality rules.
The Iowa Department of Natural Resources developed the “antidegradation” standards for high-quality Iowa waters over many years. The state Environmental Protection Commission voted to approve those rules in December 2009, and the state legislature’s Administrative Rules Review Committee blocked Republican efforts to overturn those rules in February 2010. The U.S. Environmental Protection Agency signed off on the Iowa standards in September 2010:
EPA Region 7 has issued its approval of Iowa’s Antidegradation Policy and Implementation Procedures, which are to be used by the Iowa Department of Natural Resources to protect high quality Iowa waters. High quality waters are those with pollutant levels lower than what is required by state regulations.
“Implementation of the rule will yield great water benefits to the residents of Iowa and people who visit the state,” said Karl Brooks, regional administrator. “The rule helps guarantee Iowa’s waters to be safe for aquatic life and recreational activities.”
Iowa is obligated under the Clean Water Act (CWA) to develop and adopt a statewide antidegradation policy and to identify procedures for implementing the policy. Antidegradation refers to federal regulations designed to maintain and protect high quality waters and existing water quality in other waters from unnecessary pollution. It also provides avenues for the public to engage in determining acceptable levels of pollution.
There are three components to water quality standards: water body uses such as swimming and fishing, the criteria to protect those uses and an antidegradation policy to preserve the high quality of minimally polluted waters.
Immediately after the EPA announced its decision, the Iowa Farm Bureau and two other groups challenged the legality of the water quality rules. Two of their objections related to the December 2009 vote by the Environmental Protection Commission. They claimed that commissioner Susan Heathcote, whose term on the EPC has since expired, had a conflict of interest because of her work on water quality for the Iowa Environmental Council. That non-profit organization, with which I’m involved, had advocated for the DNR to adopt strong antidegradation rules. The IEC is also one of three groups that are intervening in the Farm Bureau’s lawsuit to ensure that the antidegradation standards will not be relaxed.
Farm Bureau requested copies of all internal communications related to Heathcote’s work on water quality for the Iowa Environmental Council. The council provided public documents about its antidegradation work, and the DNR provided all e-mails on the subject between DNR staff and Heathcote in her IEC role, as well as all the relevant communications by Heathcote in her EPC role. Farm Bureau is seeking more internal IEC documents through a Motion to Compel filed with the district court in May.
This week the IEC formally asked the court to deny Farm Bureau’s request. A hearing is scheduled for August 23. IEC Executive Director Marian Riggs Gelb charged that Farm Bureau is “using the legal system to harass and intimidate us.” She noted that during the three years the Environmental Protection Commission was considering the antidegradation rules, Farm Bureau representatives never expressed concerns about Heathcote’s alleged conflict of interest to the Iowa Ethics and Campaign Disclosure Board. Riggs Gelb said the IEC had already devoted “a huge amount of staff time” to comply with the Farm Bureau subpeona, and accused the industry group of launching a “fishing expedition to get confidential information.”
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Here is the full text of the Iowa Environmental Council’s August 11 press release:
Environmental Group Stands Firm Against Farm Bureau Intimidation Tactic
Lawyers for the Iowa Environmental Council (IEC) are requesting a Court Order to deny Farm Bureau’s request to examine the internal communications of IEC in the ongoing battle over clean water rules the state approved last year. The request was filed on Tuesday in the Iowa District Court for Polk County.
“Farm Bureau’s continued legal maneuvers are meant to intimidate us and keep us from our work and are a misuse of the legal system,” said Marian Riggs Gelb, executive director for Iowa Environmental Council, a non-profit environmental advocacy group.
Riggs Gelb was referring to a subpoena served on the IEC in October of 2010 by the Iowa Farm Bureau, stemming from a lawsuit the Farm Bureau filed against the Department of Natural Resources (DNR) and the Environmental Protection Commission (EPC) in a last ditch attempt to overturn clean water protections in Iowa.
Iowa’s Antidegradation Rules, intended to stem further pollution of Iowa’s drinking water sources and recreatonal waters, were given final approval by the US Environmental Protection Agency on September 30, 2010. This federal approval came after over three years of a state process that included dozens of workshops, meetings and public hearings where nearly 1000 people or groups provided oral or written comments. The rules were developed by DNR professional staff, voted on and approved by the EPC and reviewed and approved by a bipartisan legislative committee at the Statehouse.
However, on October 4, 2010, the Iowa Farm Bureau Federation, Iowa Renewable Fuels Association, and Iowa Water Environment Association, having failed to stop the progression of the rules through the customary state process, filed suit against the State in an attempt to halt implementation of the rules.
Susan Heathcote, who is the water program director for the Iowa Environmental Council, was serving as a private citizen volunteer commissioner on the EPC at the time the Antidegradation Rules were brought before the Commission. The Farm Bureau suit alleges that Heathcote had a “conflict of interest” that should have disqualified her from voting on the Antidegradation Rules in December of 2009.
“If the Farm Bureau truly believed their own claims in their lawsuit, they had ample opportunity to bring their concerns to the Iowa Ethics and Campaign Disclosure Board. The rules were under consideration by the EPC for three years and Susan served the entire time, yet the Farm Bureau never objected through the conventional channels available to them at that time,” said Riggs Gelb.
The Iowa Ethics and Campaign Disclosure Board has jurisdiction over Iowa public officials and conflicts of interest. Prior to accepting appointment to the EPC and during her service on the Commission, Heathcote conferred with the Board staff and the Iowa DNR’s legal team to determine her voting eligibility and followed their advice, which was that she did not have a conflict of interest and could vote on the Antidegradation Rules.
On October 28, 2010, the Farm Bureau served a subpoena on the Iowa Environmental Council requesting “any and all records, correspondence, memoranda, writings or other documents or information” relating to Heathcote’s employment at IEC and IEC’s work on clean water antidegradation policy.
In an effort to be responsive to the subpoena, the IEC provided Farm Bureau with all public documents relating to its work on antidegradation policies. Additionally, the DNR provided Iowa Farm Bureau lawyers with thousands of documents, including every email sent or received by Susan Heathcote regarding antidegradation in her role as EPC Commissioner and every communication between Susan Heathcote and DNR staff regarding antidegradation.
This was not enough for Farm Bureau, and on May 6, 2011, they filed a Motion to Compel the IEC to provide additional information requested in the subpoena, and are standing firm on their assertion that they have a right to examine the Council’s internal emails and other strategic and confidential communications between Council staff and their attorneys, donors, members and partner organizations.
“We’ve spent a huge amount of staff time trying to comply with their requests for documents, at the expense of using our staff and resources. They seem to be on some kind of fishing expedition to get confidential information about our internal strategies on policymaking endeavors and are using the legal system to harass and intimidate us,” said Marian Riggs Gelb, IEC’s executive director.
“Our biggest concern is that the Farm Bureau’s actions could deter other qualified people from volunteering to serve on state boards and commissions for fear of harassment like this, added Riggs Gelb.
A hearing on Farm Bureau’s Motion to Compel further disclosure of IEC’s confidential communications is scheduled for August 23, in the Iowa District Court for Polk County, 500 Mulberry Street, Des Moines.