|The state of Iowa should have had an "antidegradation" rule in place decades ago, but the Iowa Department of Natural Resources only took up rulemaking a few years ago, after being instructed to do so by the U.S. Environmental Protection Agency. Following extensive public input, the state Environmental Protection Commission voted to approve an antidegradation rule in December 2009, and the Iowa DNR formally adopted that rule the following year. Finally, Iowa was poised to be in compliance with the 1972 federal Clean Water Act.
However, immediately after the U.S. EPA gave its blessing to Iowa's antidegradation policies, the Iowa Farm Bureau Federation, the Iowa Renewable Fuels Association, and the Iowa Water Environment Association sued to block the rule from going into effect. Plaintiffs claimed that the Environmental Protection Commission's vote was invalid.
Polk County Judge Mary Pat Gunderson found all of the plaintiff's objections "without merit" and issued a summary judgment on March 30 of this year dismissing the challenge without trial. Bleeding Heartland discussed the key points of Gunderson's ruling here.
Chris Gruenhagen, government relations counsel for Iowa Farm Bureau, told Brownfield Ag News for America this week that plaintiffs are likely to appeal to the Iowa Supreme Court. Click through for the audio recording of her comments. Excerpt:
"This case was really about good government, and who gets to sit on state boards and vote on regulations," Gruenhagen says. "Because the anti-degradation water quality rule imposes new burdens on all Iowans, the procedure that was used to adopt this rule was really important-because you really want to make sure that all viewpoints get fair consideration and get looked at when a decision is made." [...]
In the meantime, Gruenhagen says, the two EPC members in question have been replaced, which has alleviated some of Farm Bureau's concerns with the commission.
"The current members of the commission do look at both sides of the issue-and are making decisions for the state of Iowa," she says.
However, Gruenhagen says an appeal of last week's ruling to the Iowa Supreme Court is likely. And she adds, "even though this case wasn't about water quality, we think that on-the-ground efforts in water quality-going watershed by watershed in local communities-is really what is going to work to help address our challenges.
"Adding new legal burdens doesn't really advance the effort in improving our water quality."
The Iowa Farm Bureau Spokesman published similar comments from Gruenhagen in an April 11 article headlined "Farm Bureau plans appeal in EPC lawsuit."
Farm Bureau, Gruenhagen said, is disappointed in the court's ruling. "This case is about good government and whether certain individuals should have recused themselves from deciding what Iowa's anti-degradation rules should look like," she said.
Farm Bureau, Gruenhagen said, believes that instead of imposing new legal burdens for all of Iowa's watersheds, the state should consider each watershed individually.
How disingenuous for Gruenhagen to pretend this case wasn't about water quality. All the plaintiffs represent interest groups responsible for significant water pollution in Iowa. The Iowa Renewable Fuels Association represents ethanol and biodiesel producers. The Iowa Water Environmental Association describes itself as "an organization of professionals committed to the education and advancement of water quality and water pollution control techniques." But on behalf of 176 Iowa municipal facilities that discharge wastewater, the association has formally opposed stronger wastewater treatment regulations to reduce nutrient levels in Iowa waterways. Many other industry associations or corporate advocacy groups intervened on behalf of the plaintiffs in this lawsuit, including the Agribusiness Association of Iowa, the Iowa Association of Business and Industry, the Iowa Cattlemen's Association, the Iowa Pork Producers, the Iowa Poultry Association, and the Iowa Corn Growers. All of those groups have a stake in blocking stronger restrictions on water pollution.
The Environmental Protection Commission took action on various matters during the fall of 2009, after commissioner Carrie La Seur had moved to Montana and while commissioner Susan Heathcote was working for the Iowa Environmental Council. Yet the plaintiffs challenged just one action: the vote for the most important water quality rules this state adopted in the past decade.
Gruenhagen implies that the antidegradation rule "imposes new burdens on all Iowans" and doesn't consider differences among watersheds. Sorry, no. The Iowa Environmental Council (for which I'm an active volunteer) summarized the point of the regulations:
The protections, known as antidegradation rules, limit the harmful effects of new pollution in Iowa's waters. They require the Iowa Department of Natural Resources to consider how new pollution in an area might harm uses of the water like drinking, wildlife habitat, and outdoor recreation when the agency issues permits allowing new pollution discharges. Different standards of protection apply to different waterways based on their existing quality, and the protections are stronger in places where the water is more pristine.
Gruenhagen would have you believe that the DNR and Environmental Protection Commission didn't make sure "all viewpoints get fair consideration" when adopting the rules. But the commission includes representatives of agriculture, and the draft rules were revised to reflect public input, including from corporate interests. In fact, Judge Gunderson noted on page 16 of her ruling,
It is also clear from the record before the Court that the twenty-eight page antidegradation rules actually voted on and approved by Heathcote and the EPC on December 15, 2009, are not the same twelve pages of rules proposed by the [Iowa Environmental Council] in its Petition for Rulemaking submitted October 15, 2007. (R. App. 237-39; 496-529). Instead, the EPC voted on rules drafted and recommended by the IDNR after its extensive consultation with several interest groups and taking a multitude of public comments. [...] In several respects the final rules voted on were more flexible and less burdensome than the rules proposed by the IEC.
I loved how Gruenhagen characterized the new makeup of the Environmental Protection Commission: "The current members of the commission do look at both sides of the issue-and are making decisions for the state of Iowa." More like, the current members of the commission are heavily tied to agribusiness and have never shown any inclination to support government action to protect the environment.
Iowa Farm Bureau members with a vested interest in policies affecting the agricultural sector sit on many Iowa boards and commissions. I expect the Iowa Supreme Court to affirm Judge Gunderson's decision to dismiss the lawsuit challenging the antidegradation rules. But if the Supreme Court justices rule in favor of the plaintiffs, I wonder whether people will start suing to overturn other Iowa regulations, claiming Farm Bureau members who serve on various state commissions should have recused themselves.
Speaking of conflicts of interest, Bleeding Heartland is seeking further information about the decision by the Iowa Board of Regents to lobby against legislation that would legalize some raw milk sales by farmers to consumers. It's odd that the Board of Regents would have a dog in that fight, which seems outside the board's mission. Commenting on this Bleeding Heartland post last week, raw milk supporter Francis Thicke stated that he had not found any record in the Board of Regents minutes of formal board action regarding raw milk. Did Regents President Craig Lang, a dairy farmer and longtime president of the Iowa Farm Bureau Federation, take it upon himself to involve the Regents in this debate? Did the Regents solicit testimony by Iowa State University faculty to persuade legislators not to legalize raw milk sales? If so, that seems like an overreach.
Any relevant thoughts are welcome in this thread.