Court ruling is huge victory for Iowa water quality

A Polk County District Court judge rejected a lawsuit by the Iowa Farm Bureau Federation and two other industry groups seeking to invalidate the most significant water quality regulations adopted in Iowa during the past decade.

The Iowa Department of Natural Resources adopted its “antidegradation” rule to protect water quality in 2010, more than a decade after the U.S. Environmental Protection Agency instructed Iowa policy-makers to improve the state’s regulations in this area. Immediately after the EPA signed off on the DNR’s rule, the Iowa Farm Bureau Federation, Iowa Renewable Fuels Association, and Iowa Water Environment Association filed suit against the DNR and the state Environmental Protection Commission, which had voted to approve the antidegradation rule. The lawsuit charged that the rule was invalid because two of the EPC members should not have been able to vote for it. In addition, the plaintiffs charged that the “Outstanding Iowa Waters” portion of the antidegradation rule violates Iowa Code because it is more restrictive than federal law.

On March 30, Polk County District Court Judge Mary Pat Gunderson declared all the legal challenges “without merit” in a summary judgment. Although Farm Bureau and the other groups are likely to appeal, the summary judgment is a strong statement that the plaintiffs’ case was not even worth considering at a trial.

This case was closely watched in the business and environmental communities. Several corporate advocacy organizations, including the Agribusiness Association of Iowa and the Association of Business and Industry, intervened on behalf of the petitioners. Three environmental organizations intervened supporting the defendants: Environmental Law & Policy Center, Iowa Environmental Council, and Sierra Club Iowa Chapter.

I enclose press releases below from the Iowa Environmental Council and the Sierra Club Iowa Chapter. Judge Gunderson’s ruling does not appear to be listed yet on the Iowa Judicial Branch fifth district web page. I obtained a copy of her ruling and thought some excerpts were worth posting.

The Environmental Protection Commission has nine members, and five votes are needed to pass any rule. The antidegradation rule received six votes in favor in December 2009. The lawsuit alleged that commissioner Carrie La Seur was ineligible to serve on the EPC because she was no longer an “elector” of the State of Iowa. Consequently, the EPC was an “improperly constituted body” during its December 2009 meeting. If the plaintiffs had prevailed on this point, the antidegradation rules would be dead forever, because Governor Terry Branstad’s appointees to the EPC are tied to agribusiness and generally hostile to environmental regulations.

La Seur moved to Montana in the summer of 2009, registered to vote there in August of that year and voted in school board and local elections in September and November. On pages 9 and 10 of her ruling, Judge Gunderson explains Iowa case law regarding the “de facto officer,” which goes back to 1863. Iowa courts have repeatedly held that actions by a “de facto official” are valid. Excerpt from page 11:

The record here is clear that La Seur was duly appointed and qualified to be a member of the EPC at all times prior to August 3, 2009. Her becoming registered to vote in Montana at that time may have made her no longer qualified under one of the “technical” terms of the statute to be an EPC member. However, such act in no way invalidated or lessened her education and experience that made her qualified for, and got her appointed to, the EPC. Her Montana voter registration did not take away the expertise she possessed about the issues before the EPC, and she continued to be amply qualified to act as a commissioner in this respect. Thus, being registered to vote in another state was merely a “technical infirmity” and did not go to “the heart” of the qualifications for being on the EPC or her ability to perform her duties in any manner.

Gunderson also noted that during the second half of 2009, La Seur reviewed EPC business, responded to official e-mail, and attended or participated in EPC monthly meetings. “Therefore, because La Seur assumed and performed the duties of commissioner under color of authority and was recognized and accepted as the rightful holder of the by all who dealt with her she was a valid de facto commissioner.”

The plaintiffs alleged that EPC commissioner Susan Heathcote should not have been able to vote for the antidegradation rules in December 2009 either. They claim that Heathcote had a conflict of interest because she works as water program director for the Iowa Environmental Council. In fact, before this case went to trial the Farm Bureau tried to obtain copies of all internal communications related to Heathcote’s work on water quality for the Iowa Environmental Council, an effort the non-profit denounced as an effort to “harass and intimidate.” (In October 2011, Polk County District Court Judge Brad McCall rejected the plaintiffs’ motion to compel the council to hand over internal e-mails.)

Pages 13 through 18 of Gunderson’s ruling deal with the claims surrounding Heathcote’s eligibility to vote for antidegradation rules on the EPC. The judge noted that during Iowa Senate confirmation hearings in April 2007, Heathcote

stated she had met with the Executive Director and legal counsel of the Ethics Board and was advised when a conflict of interest would and would not arise in her situation. She was informed a conflict of interest would arise if the IEC would obtain financial or other substantial benefits from her actions as an EPC commissioner, if the IEC had a contract with the IDNR that came before the EPC, or there were other legal matters between the IDNR and IEC before the EPC. […] However, a conflict would not arise when the IEC simply had a position on an issue before the EPC.

Judge Gunderson noted that neither Governor Chet Culver’s office nor the Iowa legislature found any conflict of interest problem with Heathcote serving on the EPC. On page 15, the ruling discusses EPC’s enabling statute, which calls for members to have experience and expertise to handle the work. On page 16, it notes that the antidegradation rule voted on during the EPC’s December 2009 meeting was not the same rule proposed by the Iowa Environmental Council in its 2007 petition to the DNR for rulemaking on antidegradation.

The judge then discussed the Iowa Ethics and Campaign Disclosure Board’s decision to reject an ethics complaint against Brent Rastetter, whom Branstad appointed to the EPC. Iowa Citizens for Community Improvement members charged that Rastetter had a conflict of interest when he voted on rules related to confined animal feeding operations. Rastetter runs a company that builds CAFO structures. In November 2011 the Ethics Board dismissed the complaint against Rastetter. Bleeding Heartland discussed that decision here. Gunderson writes,

In reaching its decision the Ethics Board relied on a 2003 case in which it also found no conflict of interest for a commissioner on the EPC who owned and operated several large-scale hog confinement operations to vote on rules promulgated by the EPC that impact these types of facilities. The Ethics Board noted the statutory provisions requiring specified knowledge or experience for EPC commissioners, and found it would be “inappropriate to require those members, whose expertise the legislature values, to refrain from voting on or discussion rules affecting” those specialized areas.

The Court finds this prior decision by the Iowa Ethics Board provides persuasive authority for Respondents’ argument that, as a matter of law, Heathcote’s employment with the IEC did not create a conflict of interest under section 68B.2A in her vote on the antidegradation rules.

Gunderson also found “nothing in the record to show Heathcote or her employer IEC had any financial interest in the adoption of statewide antidegradation rules.”

The third claim in the lawsuit is that the Outstanding Iowa Waters language in the antidegradation rule violates Iowa law because it is more restrictive than federal law. Judge Gunderson discusses this issue on pages 19 through 23. She found that the DNR and EPC complied with all public notice requirements during the rulemaking process. Regarding some of the specific language cited by plaintiffs, the judge noted that there are no federal standards from which Iowa standards could be “more restrictive.” She concluded that “Petitioners have not set forth specific facts showing that there is a genuine issue for trial on this matter.”

Any relevant comments are welcome in this thread.

Press release from Iowa Environmental Council, April 2:

Judge: Farm Bureau attack on clean water standards “without merit”

Legal challenges to new clean water protections in Iowa raised by the Iowa Farm Bureau Federation and other groups are “without merit” and should not move on to trial, a judge in the Iowa District Court for Polk County ruled Friday.

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.

“We were thrilled to finally see Iowa adopt these protections two years ago, and today we are celebrating again because the court has recognized the Farm Bureau’s legal action for what it is-an obstructionist attempt to achieve in court what they could not accomplish in the rulemaking process,” said Marian Riggs Gelb, the Iowa Environmental Council’s executive director.

Gelb said the ruling is a major milestone on Iowa’s path to effectively implementing the federal Clean Water Act, 40 years after Congress passed it in 1972.  The Environmental Protection Agency called on Iowa to improve its antidegradation policies in the late 1990s, and it took over a decade for the Iowa Department of Natural Resources to finalize the rules.

“It only took days after the federal government accepted Iowa’s new standards for the Farm Bureau and others to launch their legal effort to overturn what Iowa achieved,” Gelb said.  “We view these actions as part of Farm Bureau’s all-too-frequent pattern of weakening, delaying, or outright opposing environmental regulations, regardless of the public benefits.”

The Farm Bureau, working with the Iowa Renewable Fuels Association and the Iowa Water Environment Association, argued that two members of the state’s Environmental Protection Commission (EPC), Iowa’s environmental rulemaking body, should not have been permitted to cast votes in favor of the proposed rules when they came before the EPC in 2009.

In addition, the Farm Bureau and its collaborators alleged the rulemaking process was flawed in other ways, but the court disagreed, finding no “genuine issue for trial” amid the arguments presented.

Susan Heathcote, who also serves as water program director for the Iowa Environmental Council, was one of the two commissioners under scrutiny.  The opponents alleged that Heathcote’s role at the Council, an environmental policy organization, created a conflict of interest that should have prevented her from voting on the antidegradation rules.

The judge disagreed, finding that “there is no genuine issue of material fact regarding Susan Heathcote because reasonable minds could not conclude she had a significant conflict of interest or bias sufficient to invalidate her vote on the antidegradation rules, and thus her vote on the proposed rules was valid.”

Brad Klein, Senior Staff Attorney with the Environmental Law & Policy Center who represented the Iowa Environmental Council, an intervener in the lawsuit, said Friday’s ruling has broad implications for environmental protection in Iowa.

“It upholds the rigorous, public process that went into developing those standards and the right of public advocates to serve on Iowa boards and commissions,” he said.  “We’re pleased the judge rejected the Farm Bureau’s attempts to use the court system to harass and intimidate public officials that volunteer to serve their communities.”

Further, the court found that the specialized expertise Heathcote brought to the Commission made her more qualified to serve there, not less so, and pointed out that the state law creating the EPC in fact requires members to have knowledge of the areas of law their work will affect.

The court recognized this, referring to an earlier ruling by the Iowa Ethics and Campaign Disclosure Board, which has jurisdiction over Iowa public officials and conflicts of interest, in which the board found that in light of “statutory provisions requiring specified knowledge or experience for EPC commissioners,” it would be “‘inappropriate to require those members, whose expertise the legislature values, to refrain from voting on or discussing rules affecting’ those specialized areas.”

“Susan has always been forthright about maintaining an appropriate separation between her work at the Council and her work as a commissioner,” Gelb said.  “The judge’s ruling on this issue is critical because it protects the right of experts in environmental policy like Susan to apply that expertise on behalf of the public when important decisions are being made.”

Gelb said that in addition to threatening important water quality protections for Iowa, the lawsuit has been a way for opponents of environmental protection to attempt to intimidate the Iowa Environmental Council and other environmental groups.

“This litigation has been a costly interruption of our work,” Gelb said, “but we have remained steadfastly committed to our mission of environmental protection, and we will continue our efforts.  Antidegradation protections are already making meaningful improvements to water quality in Iowa, and we hope these rules can now continue in force without further baseless legal challenges.”

Press release from Sierra Club Iowa Chapter, March 30:

WATER QUALITY WINS IN COURT DECISION

Des Moines – In a ruling today, Polk County District Court Judge Mary Pat Gunderson ruled in favor of the environment and water quality.

“After more than 30 years, this antidegradation rule finally brings Iowa into compliance with the Clean Water Act,” said Wallace Taylor, the Sierra Club Iowa Chapter Legal Chair. “This rule was the product of almost three years of effort by the Department of Natural Resources working with the regulated community and environmental organizations to adopt a rule that is fair.”

A lawsuit, brought by the Iowa Farm Bureau Federation (Farm Bureau), Iowa Renewable Fuels Association (IRFA) and Iowa Water Environment Association (IWEA), contended that an Environmental Protection Commission voted to approve a rule that will improve the quality of Iowa’s water resources is invalid because one of the commissioners had a conflict of interest and that another one wasn’t qualified to vote because she had recently moved out of state. The lawsuit also asserted the rule is more stringent than federal law because it protects Outstanding Iowa Waters.

Judge Gunderson ruled that although then-commissioner Carrie LaSeur, who had moved to Montana prior to the December 2009 vote, was not an elector of the state of Iowa as required by statute when she voted on the antidegradation rule, it didn’t matter because when LaSeur’s disqualification is simply a technical infirmity that does not go to the heart of her duties and her actions are valid.

The Farm Bureau, IRFA and IWEA claimed the rule is invalid, in part, because one of the Commissioners is a water quality advocate for one of the organizations that petitioned the EPC for rulemaking. Judge Gunderson ruled that “Susan Heathcote [who served on the commission in 2009] did not have a conflict of interest because the antidegradation rule finally adopted was not the one IEC, Sierra Club and Hawkeye Fly Fishing Association submitted [for rulemaking in 2007]; because she had no direct financial stake in the outcome; because the legislature established the EPC so commissioners would have expertise in certain areas; and because the Iowa Ethics and Campaign Disclosure Board cleared her for conflicts.”

Outstanding Iowa Waters protection also was victorious in today’s decision. Judge Gunderson ruled that the protections may or may not be more restrictive than the federal rule, but the EPC substantially complied with the notice requirement.

The Environmental Protection Agency approved Iowa’s Antidegradation rule and Antidegradation Implementation Procedure in September 2010.

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