James Larew is an attorney in Iowa City who served as general counsel and chief of staff for former Governor Chet Culver. Chris Jones is retired from the University of Iowa where he worked as a Research Engineer at IIHR-Hydroscience & Engineering. Prior to that he worked at the Des Moines Water Works and the Iowa Soybean Association. He is author of the book The Swine Republic, Struggles with the Truth about Agriculture and Water Quality. He lives in Iowa City. 

Iowa law should recognize access to clean water and clean air as a fundamental right.

The Iowa Constitution 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.

Iowa’s earliest settlers enjoyed the fundamental right to clean air and water. 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.” 

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

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 dubious 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.

Every day, citizens experience the resulting damage to our environment: 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 country in which cancer rates are increasing—even Kentucky’s rates are dropping. Water samples from Iowa’s rivers and streams show continuing declines in quality. Water shortages threaten wide expanses of Iowa.

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 two consecutively elected state legislatures, and if approved by a majority of Iowa voters, would 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 upheld, 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 would 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 would have an affirmative duty to protect natural resources—air, water, and land—for public use. 

Under this public trust obligation, our state government would be deemed expressly responsible for pro-actively protecting and maintaining those resources. Governmental agencies would no longer be allowed to simply wait for 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. Article I, Section 1 of Iowa’s Constitution, as enacted in 1857, now reads as follows:

Rights of persons. SECTION 1. 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, Iowa voters approved a constitutional amendment already passed by the state House and Senate in two consecutive sessions. The new subsection, numbered 1A, was intended 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

This proposed constitutional amendment is not intended to be partisan. 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, so our state’s environmental laws could be used to protect citizens from the excesses of industrial agriculture. 

All 100 Iowa House seats and 25 of the 50 Iowa Senate seats are up for election this November. We urge you to ask the candidates for all of those offices: “If elected, will you support an amendment to Iowa’s constitution that recognizes citizens’ fundamental right to access clean water and clean air?”

Share what the candidates tell you with 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.