OPINION: Amend Iowa's Constitution to assure the people's access to clean water, clean air

Access to clean water and clean air should be recognized as a fundamental right under Iowa law.

The Constitution of the state of Iowa should be amended to assure that right is protected, and to guarantee that governmental actions conflicting with this right are subjected to strict judicial scrutiny.

A further constitutionally imposed duty should be placed on state government: to affirmatively protect our precious natural resources for us, and for all future generations.

The fundamental right to clean air and water was enjoyed by Iowa’s earliest settlers. Many of those early Iowans, in their letters and diaries, described their unfettered access to our state’s uncommonly pure air and water of astonishing quality and quantity.

Consistent with those earliest impressions, the Code of Iowa states that water in Iowa belongs to the people. It is described in our statutes as “public wealth.”

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Today, however, these rights are severely threatened by what might be called an “agricultural-industrial complex.”

The concentration of financial and political power in the agricultural sector is increasing. A host of special interests pressure the state Legislature and Congress, such as:

• Fertilizer and feed manufacturers who seek to expand their businesses by promoting fencerow-to-fencerow planting of only two crops: corn and soybeans.
• Members of the ethanol supply chain who push to mandate more ethanol uses.
• Investors in concentrated Iivestock feeding operations (hogs, cattle and poultry) who want less stringent pollution regulations over the distributions of enormous quantities of animal waste.
• Well-heeled promoters seeking federal tax credits who push for the construction of CO2 pipeline networks — ones that will consume untold amounts of our water (our wealth) to transport this dangerous chemical across private lands, often on tracks forced upon landowners via eminent domain, to be buried in distant venues.

Under these pressures, legislators have created laws and practices that are inflicting severe damage to our air and water, thereby diminishing citizens’ rights to access, in effect, their own wealth. Regulators and elected officials who should be protecting these resources are, too often, asleep at the switch.

The resulting damage to our environment is experienced by citizens every day: befouled air wherever the public may travel, live or work; closed public beaches because the water is heavily polluted with E. coli and other pathogens from animal feeding operations and chemical runoffs from farm fields located in surrounding watersheds; private wells poisoned with nitrate and bacteria; expensive expansions to water treatment facilities essential to protect urban dwellers’ drinking supplies.

Cancer rates in Iowa are now the second highest of any state in the nation. Only Kentucky has higher cancer rates than does Iowa. But, we are the only state in the United States in which cancer rates are increasing — even Kentucky’s rates are lowering. Water samples from Iowa’s rivers and streams show continuing declines in quality. Wide expanses of Iowa are threatened with water shortages.

These adverse trends coincide with the rise of Iowa’s agricultural-industrial-complex.

It’s time for dramatic, legally enforceable changes to the culture created and enforced by this unsustainable model of agriculture.

The constitutionally protected right we propose is described as “fundamental.” Any interference with that right by a governmental entity, under our language, if adopted by the Iowa General Assembly in two consecutive sessions and if approved by a majority of Iowa voters (a constitutional amendment does not require the signature of Iowa’s governor), will be subject to strict judicial scrutiny.

In other words, Iowans could challenge any law or action that collides with citizens’ rights to access clean air or clean water.

For a challenged law, regulation or action to be judicially approved, the government would have to demonstrate to a reviewing court that the government’s action is necessary to achieve a “compelling state interest,” and that it is “narrowly tailored” to achieve that purpose, and, further, that the government has used the “least restrictive alternative” to reach that end.

Under this proposed constitutional amendment, and with governmental conduct subjected to this kind of elevated scrutiny, the public’s health and welfare will be much better protected from environmental contaminants than it has been in recent years.

Our proposed amendment goes beyond the “fundamental rights” and “strict scrutiny” doctrines in defining Iowa’s obligation to protect citizens’ presumed right to access clean air and clean water.  Under language describing a “public trust” obligation, the state will have an affirmative duty to protect natural resources — air, water, and land — for public use.

Under this public trust obligation, our state government will be deemed expressly responsible for pro-actively protecting and maintaining those resources. Governmental agencies will no longer be allowed to simply await and then respond to a complaint and then start to count dead fish or to measure the amounts of contamination in our public lakes.

Our proposed amendment would be “self-executing,” and, thus, enforceable in court immediately upon its passage. It would not be subject to further legislation before being implemented.

Here’s the specific language that we propose.  Section 1 of Article 1, of Iowa’s Constitution, as enacted in 1857, now reads as follows:

Section 1.

Rights of persons.

All men and women are, by nature, free and equal, and have certain inalienable rights —among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety and happiness.

In 2022, upon the support of the Iowa House and Senate in two consecutive sessions, and upon the approval of the majority of Iowa voters, a new subsection, numbered 1A, was added to assure that citizens’ common law right to bear arms was constitutionally protected.

To these existing provisions in Section 1, in a new subsection numbered 1B, we propose the following language be added:

Section 1B

Every individual has a fundamental right to access clean water and clean air, and the enjoyment of the same, free from harms caused by contaminants and pollutants, including disease, injury and/or other hazards. The state shall not infringe upon this right; rather, as a trustee of public natural resources, all public waters, including aquifers and groundwater, and the air, wherever located, the state shall conserve such resources for the benefit, under this right, for this generation and all future generations. This section and the right stated herein is self-executing. Any and all infringements upon this right shall be subject to strict scrutiny.

There is no intended partisanship with this proposed constitutional amendment. Polls we have seen indicate that the overwhelming majority of Iowans support access to clean air and water. Drinking or swimming in dirty water, or breathing contaminated air, injures a person regardless of political affiliation or geographical location. Unsafe air and dirty water can cause cancers or other illnesses that may affect any and all Iowans.

It is time for fundamental changes in the way that our environmental laws are used to protect citizens from the excesses of industrial agriculture.

All Iowa House seats and many Iowa Senate seats are up for election.  We urge you to visit with the candidates for all of those offices and ask: “If elected, will you support an amendment to Iowa’s constitution that recognizes citizens’ fundamental right to access clean water and clean air?”

Report the answers given to you by the candidates to your family members, friends and neighbors so they can make fully informed decisions about this critical matter when casting their ballots.

Let’s get going.

James Larew was general counsel for Gov. Chet Culver and is an attorney from Iowa City. Chris Jones is a retired University of Iowa water quality research engineer.

This article originally appeared on Des Moines Register: OPINION: Amend Iowa's Constitution to assure the people's access to clean water, clean air