In a 4-3 split decision, the Iowa Supreme Court affirmed today a Polk County District Court ruling that dismissed a lawsuit seeking to nullify new state water quality rules.
The environmental community and groups representing big agribusiness have closely watched this case for years, because the “antidegradation” rules are an important step toward bringing Iowa into compliance with the federal Clean Water Act. Had this lawsuit succeeded, no strong water quality rules would have seen the light of day for the forseeable future in Iowa, because Governor Terry Branstad has packed the State Environmental Protection Commission with advocates for agribusiness.
Follow me after the jump for more background on the case and details about today’s decision.
UPDATE: Added reaction from the Iowa Farm Bureau and the Iowa Environmental Council below. If there’s a more hypocritical statewide organization than the Farm Bureau, I can’t think what it could be.
The U.S. Environmental Protection Agency instructed states way back in 1983 to adopt “antidegradation” policies for waterways. For more than two decades, the Iowa Department of Natural Resources did nothing to meet that requirement.
Finally, after several Iowa-based environmental groups petitioned for rule-making, the Iowa DNR started developing antidegradation standards for waterways in 2007. Side note: I’m active with the non-profit Iowa Environmental Council, but I played no role in this matter other than to submit public comments to the DNR at various points in the rulemaking process.
The state Environmental Protection Commission approved by 6 votes to 2 the agency’s proposed rule in December 2009. By some minor miracle, the state legislature’s Administrative Rules Review Committee allowed the rules to stand, clearing the path for the DNR to formally adopt the rule. The U.S. Environmental Protection Agency approved Iowa’s antidegradation standards in October 2010.
The Iowa Farm Bureau Federation and two industry groups (the Iowa Renewable Fuels Association and the Iowa Water Environment Association) immediately filed a lawsuit saying the antidegradation rule had been unlawfully approved by the Environmental Protection Commission. Plaintiffs maintained that two of the nine commission members should have been ineligible to vote on the matter. Specifically, they asserted that Susan Heathcote had a conflict of interest due to her employment as water program director with the Iowa Environmental Council, which advocated for a strong antidegradation rule. Their lawsuit also argued that commission member Carrie La Seur was no longer “an elector” of Iowa in December 2009.
Before the case could be considered, some legal wrangling ensued as the Iowa Farm Bureau sought to gain access to huge amounts of Iowa Environmental Council internal communications. But a Polk County District Court quashed the Farm Bureau’s subpoena for the non-profit’s records in October 2011. Another Polk County District Court judge dismissed the lawsuit in March 2012 after finding the legal challenges “without merit.” You can read the full text of that ruling here. Bleeding Heartland discussed its key points here.
In today’s ruling (pdf), all seven Iowa Supreme Court justices agreed that Heathcote was qualified to serve on the Environmental Protection Commission and vote on the antidegradation rule. It was ludicrous for the Farm Bureau and other groups to claim that her advocacy work should disqualify her, given that Iowa Code ensures that five of the nine commission members be employed in sectors with a direct stake in environmental regulations.
The challenge to La Seur’s qualifications divided the Iowa Supreme Court justices. Chief Justice Mark Cady wrote the majority opinion, which held that La Seur’s residence in Montana did not invalidate everything the state commission did with her participation. Under the “de facto officer doctrine” long recognized in Iowa case law, and cited in the lower court ruling, La Seur did not become “unqualified to do her job” when she “lost her status as an [Iowa] elector.” Consequently, the commission’s action in late 2009 remains valid. Justices Brent Appel, David Wiggins, and Daryl Hecht concurred with the majority ruling, which concluded,
The district court did not err by granting summary judgment to the Commission regarding both Heathcote’s and La Seur’s participation. The district court also did not err by granting summary judgment without affording Farm Bureau an opportunity to obtain the internal emails from the Iowa Environmental Council regarding the scope of Heathcote’s job function. Accordingly, we affirm the decision of the district court.
Justice Thomas Waterman wrote separately, concurring in part and dissenting in part. His opinion, joined by Justices Edward Mansfield and Bruce Zager, begins on page 58 of this pdf file. Waterman agrees that “Farm Bureau failed to establish grounds to disqualify Heathcote” from serving on the commission or voting to approve the rules. But he argues that the Iowa legislature “narrowed the defacto officer doctrine when it adopted the 1998 amendments to the Iowa Administrative Procedure Act.” He further concludes that the Environmental Protection Commission “was improperly constituted with [La Seur’s] voting participation,” as all parties agree she ceased to be an elector of Iowa when she moved to Montana and cast a vote in a local election there.
For that reason, Waterman believes the district court should have reviewed the agency’s action, and erred in granting summary judgment.
On page 52 of the majority opinion, Cady argues, “there is simply no indication the legislature intended to abolish the defacto officer doctrine when it amended section 17A.19(10)(e) [in 1998].” I am not an attorney, much less an expert in this area of the law. But I don’t understand why Waterman, Mansfield, and Zager would throw out the antidegradation rule over that objection. Even if you agree that La Seur should not have been able to vote on the matter, five commissioners (Heathcote plus the four whose qualifications were not challenged in the lawsuit) voted for the rule. Only a simple majority of nine commissioners is needed to take action. I don’t see the logic in nullifying everything the Environmental Protection Commission did over a period of months, just because La Seur was present or participated in meetings by telephone.
Any relevant comments are welcome in this thread.
UPDATE: The Iowa Farm Bureau Federation’s press release on this ruling would be funny if it weren’t so pathetic.
Iowa Farm Bureau Says Long-Awaited Supreme Court Ruling on EPC Board Member Case is a Disappointment for the Democratic Process
7/11/2014 1:51:32 PM
Court Ruling Says Employment or Residency Can’t Stop EPC Board Action
Iowa Farm Bureau Federation (IFBF), the state’s largest grassroots farm organization, is appreciative of the care the Iowa Supreme Court took in its deliberations of Iowa Farm Bureau Federation v. the Environmental Protection Commission; however, we respectfully disagree with its conclusion that anyone, regardless of current residency, employment or affiliation, may lead the rulemaking process and decide what regulations apply to Iowans. The Iowa Farm Bureau still believes in clean government and that good public policy requires that Iowa residents, not Montana residents, should decide Iowa law.
In October 2010, IFBF and several other organizations challenged the validity of a rule, at a time when one former EPC board member lived out of state, and another regulator lobbied for an environmental advocacy group. IFBF also argued that they must not be a paid advocate of a special interest group for the very rules they are charged with adopting as a government regulator.
“This is about an appointed board, who is charged with the duty of representing and considering the environmental and business interests of all Iowans. A board that serves the public needs Iowans who bring various expertise and viewpoints to the table, and the court said that being paid by a lobbying organization is just another permissible bias,” said IFBF Government Relations Counsel, Christina Gruenhagen. “Under this ruling, it is difficult to imagine a circumstance where the court will disqualify anyone from serving as an officer in the executive branch. The court also determined today that actual residency isn’t a requirement of office, even when mandated in the controlling statute.”
IFBF says moving forward, the state’s focus should be on implementing Iowa’s science-based water quality initiative, which places emphasis on critical watersheds and improving water quality.
So the Farm Bureau is interested in “clean government” now? You don’t say. Their vision of good governance is state agencies letting agribusiness set key environmental policies with no numeric standards to measure improvement in water quality and an all-voluntary approach to enforcement. In other words, that “science-based water quality initiative” could be stronger on the science side if state officials were not so beholden to the Farm Bureau.
How pathetic to see this group still pushing their baseless argument against Heathcote. Face the fact: a divided Iowa Supreme Court unanimously rejected that part of the plaintiffs’ case.
Interesting to see the Farm Bureau’s newfound distrust of having a “paid advocate of a special interest group” on the Environmental Protection Commission. That body’s current members include: Mary Boote, whose full-time employment involves lobbying for Big Ag interests; Gene Ver Steeg, a farmer and a past president of the Iowa Pork Producers Association; and Brent Rastetter, whose day job involves building hog confinement structures. Naturally, no one in the Farm Bureau was ever concerned about potential conflicts of interest there.
I do wish Carrie La Seur, an attorney who should have known better, had not voted in a Montana election while she was still serving on an Iowa commission. But the lower court and Iowa Supreme Court cited plenty of case law backing up their decision.
The Des Moines Register’s July 12 edition included these comments:
Ralph Rosenberg, executive director of the Iowa Environmental Council, said the ruling was a win for cleaning up Iowa waterways and Iowa citizens who want to serve on boards and commissions.
The water quality rules require anyone with new or expanded wastewater discharges into waterways to go through a review process and seek permits and certification from the state.
“There was an effort to disqualify an Iowans from serving … just because they had a strong policy position,” Rosenberg said. “The Farm Bureau tried to scuttle these rules, not just through the open and fair rule-making process, but by trying to undercut the rules” through legal action.
The Iowa Environmental Council released this statement:
The Iowa Supreme Court today ruled today in favor of clean water by upholding Iowa’s Clean Water Anti-Degradation Standards. In a well-reasoned, and thoughtful decision, the Court upheld the rulemaking process that established the state’s clean water anti-degradation standards, keeping rules in place that are designed to protect some of Iowa’s most important lakes and waterways.
The ruling ends the Farm Bureau’s lawsuit effort to delay or overturn the rules, which were enacted in an open and fair rulemaking process. As required by the federal Clean Water Act, Iowa’s common-sense anti-degradation standards will remain in place. Iowans are impatient on cleaning up impaired waters and preventing future pollution. Iowans can now focus on successfully implementing the rules and the ongoing work that will achieve clean water goals.
“We are grateful to the Iowa Attorney General’s Office, the Department of Natural Resources and our environmental partners for standing up to the Farm Bureau’s efforts to throw out the rules,” said Ralph Rosenberg, executive director of the Iowa Environmental Council. “This issue is greater than clean water protection. This was an effort to shut out citizen participation in government by a powerful business interest like the Farm Bureau.”
Four years ago, Iowa adopted strong “anti-degradation” standards – an important but often ignored part of the Clean Water Act designed to keep unnecessary pollution out of clean waterways. However, the Farm Bureau challenged these important standards and even issued intrusive subpoenas to intimidate local environmentalists and challenge the Environmental Protection Commission by trying to disqualify one of its members, Susan Heathcote, water program director of the Iowa Environmental Council. Lower courts have since thrown out the Farm Bureau’s legal challenges.
“This is a clear win for clean water and for open and fair government,” said Environmental Law & Policy Center Senior Attorney Brad Klein, who argued the case before the Supreme Court. “We’re grateful that the Court rejected the Farm Bureau’s attempts to harass and intimidate the Council and Susan Heathcote. This important ruling means that we can put the Farm Bureau’s attempts to delay and distract behind us and move on to protect some of Iowa’s most important lakes, rivers and streams.