When the relief sought in a lawsuit is to compel the State to enact legislation a particular way, you have to know that in most courts that dog won't hunt. Separation of powers, political question, et cetera, et cetera.
So even though it isn't about takings or compensation, you should check out the Iowa Supreme Court's opinion in Iowa Citizens for Community Improvement v. State of Iowa, No. 19-1644 (June 18, 2021), because in that case, the court rejected the claims of "[t]wo social justice organizations" in a lawsuit that asked the court to order the legislature "to enact legislation that will compel Iowa farmers to take steps that will have the effect of significantly reducing levels of nitrogen and phosphorus in the Raccoon River." Slip op. at 4.
Hold on, you say, on what basis might a court order another co-equal branch to do something like this? And there's the interesting part of the decision - the plaintiffs argued the public trust doctrine:
The plaintiffs’ claims are all based on the public trust doctrine. The plaintiffs allege that their members are beneficiaries under the public trust doctrine and that the State has a duty to protect the public use of navigable waters and to prevent substantial impairment of navigable waters. They allege that the State has abdicated control of the meandered section of the Raccoon River to private parties by pursuing a “voluntary” nitrogen and phosphorus control strategy for agricultural nonpoint sources....The plaintiffs seek both declaratory and injunctive relief, at a high level of generality. In brief, they seek a declaration that the State violated the public trust doctrine by not protecting the public’s recreational and drinking water use of navigable waters.
Slip op. at 7, 8.
Perhaps not surprisingly, the trial court balked. It dismissed for lack of standing, nonjusticiability, and failure to exhaust administrative remedies.
The Supreme Court affirmed, but only on the first two grounds (standing and political question). To do so, the opinion detailed the public trust, and in contrast to the way some other courts leverage the doctrine expansively, held that it was a limited doctrine, to preserve public use of state waterways, and to prevent alienation of that property. But ultimately, the court "assume[d] for present purposes that the public trust doctrine could be expanded to serve the plaintiffs' regulatory ends." Slip op. at 13.
The court could avoid the question (or, more precisely, saved it for a later day since we doubt this case is the end of the plaintiffs' efforts) because it concluded that the plaintiffs did not have a problem the court could fix. See slip op. at 15 ("Think about it this way: If the court can’t fix your problem, if the judicial action you seek won’t redress it, then you are only asking for an advisory opinion."). There's no causal connection here because the "asserted injury arises from the government's allegedly unlawful failure to regulate someone else[,]" and it is simply speculation that "a favorable court decision in this litigation would lead to a more aesthetically pleasing Raccoon River, better swimming and kayaking on the river, and lower water rates in the Des Moines metropolitan area." Slip op. at 16.
Contrast this approach with the Hawaii Supreme Court's analysis in this recent case which held that anyone with environmental concerns has standing to participate in administrative proceedings that conceivably could affect those interests (although there, the court was dealing with an express provision in the state constitution).
Finally, the court deemed the issues presented political questions:
As we have noted, the plaintiffs here seek to expand the traditional Iowa public trust doctrine. Historically, this doctrine has been applied by our courts in cases seeking to remove private obstructions or interferences. These types of disputes are susceptible to judicial resolution using principles of property law. The plaintiffs allege, however, that the public trust doctrine “broadly protects the public’s use of navigable waters.” In other words, the plaintiffs argue that the doctrine imposes a duty on the State to pass laws that regulate those waters in the best interests of the public.Under those circumstances, we perceive “a lack of judicially discoverable and manageable standards.” In our view, stating that the legislature must “broadly protect[] the public’s use of navigable waters” provides no meaningful standard at all. Different uses matter in different degrees to different people. How does one balance farming against swimming and kayaking? How should additional costs for farming be weighed against additional costs for drinking water? Even if courts were capable of deciding the correct outcomes, they would then have to decide the best ways to get there. Should incentives be used? What about taxes? Command-and-control policies? In sum, these matters are not “claims of legal right, resolvable according to legal principles, [but] political questions that must find their resolution elsewhere.”
Slip op. at 24-25 (citations omitted).
Iowa Citizens for Community Improvement v. State of Iowa, No. 19-1644 (Iowa June 18, 2021)
