January 31, 2007 in Idaho

Field burning ruled illegal

Betsy Z. Russell Staff writer
 

Grass seed farmers on the Rathdrum Prairie set their fields ablaze every summer, sending plumes of thick smoke into the skies. And the state of Idaho defends the controversial practice.

But the burns actually are illegal under federal law and have been since 1993, a federal appeals court ruled Tuesday in a surprise victory for clean-air advocates.

“This decision shows that the handwriting is on the wall for field burning in Idaho,” said David Baron, a Washington, D.C., attorney with Earthjustice, which represented Safe Air For Everyone and the American Lung Association of Idaho in the case against the U.S. Environmental Protection Agency.

A unanimous three-judge panel of the 9th Circuit U.S. Court of Appeals ruled in the groups’ favor and ordered the EPA to reconsider SAFE’s challenge to a 2005 EPA decision approving field-burning in the state.

Patti Gora, executive director of Sandpoint-based SAFE, said, “The agency needs to get back to the business of protecting human health. … I hope that we can come up with a solution that is reasonable and works for people, so that they really don’t have to get in any more car crashes or be taken to the hospital or miss work or flee their homes. It’s really a good day for those people who have worked long and hard and given so much to bring this to the attention of the folks that it needed to get to.”

The court ruled that Idaho’s state plan for implementing the federal Clean Air Act permitted agricultural field burning when it originally was written in 1972, but deleted that section in amendments approved in 1993. The EPA approved amendments to Idaho’s state plan in 2005 clearly legalizing and regulating field burning, and SAFE challenged the decision. The agency said field burning had been legal all along in the state, and the plan change was merely a clarification.

Not so, the court found. The justices ruled that Idaho’s state plan – which has “the force and effect of federal law” – clearly “did not permit field burning” all those years.

“We’re obviously disappointed in the decision, and we’ll be reviewing it to determine what our course of action is,” said Toni Hardesty, director of the state Department of Environmental Quality.

Cynthia Magnuson, a spokeswoman for the U.S. Department of Justice, which represented the EPA in the case, said, “The decision is still under review, and we haven’t determined how we’ll proceed at this point.”

The EPA could ask for a rehearing by the entire 9th Circuit Court, or could appeal the case to the U.S. Supreme Court. If not, the agency would be forced to reconsider the Idaho plan amendments without the assumption that field burning already was legal – which would make the amendments much harder to approve under federal law.

“Under the Clean Air Act, you can’t backslide – you can’t have a level of pollution that’s more than you did,” Gora said.

Baron said, “We think it’s pretty clear EPA is going to have to do a full Clean Air analysis of this practice, and we don’t see how, given the facts, EPA can conclude that this practice is consistent with the Clean Air Act.”

Grass seed farmers on the Rathdrum Prairie burn their fields each year to shock the plants into producing another crop without replanting. The practice greatly increases the profitability of the crop but sends dense clouds of smoke downwind.

SAFE was formed by a group of Sandpoint-area physicians concerned about the effects of the field-burning smoke on patients who suffer from respiratory problems. At least one death has been attributed to smoke from prairie field burning, in addition to thousands of complaints. Idaho lawmakers have rallied to support the farmers, passing laws to ban nuisance lawsuits against farmers over smoke and to protect the farmers’ right to burn their fields as long as they comply with state smoke-management rules.

SAFE, the lung association and others have sued repeatedly to stop the practice, but until now most of their legal challenges have ended in defeat. A notable exception was a class-action lawsuit against the farmers that resulted in a large cash settlement last year to North Idaho and Eastern Washington residents with respiratory problems who suffered from the smoke in specific years, before state lawmakers moved to prevent such lawsuits.

“We’ve had great moments; we’ve had moments of great disappointment,” Gora said. “But throughout the whole time, our board has really been convinced that we’re doing the right thing. … Just all over the state, it’s been a story of immense suffering for well over 30, 40 years, and it’s time that the tide does turn.”

Sen. Shawn Keough, R-Sandpoint, who herself has asthma, said she hoped the federal court ruling would open a door to resolving the issue in Idaho. “It gives us an opportunity to go back to the table and look at ways to reduce the impacts of field burning to Idahoans, hopefully in a manner that keeps farmers farming,” she said.

Baron noted that Washington phased out grass field burning several years ago because of concerns about its health effects. “It’s a practice that health and environmental officials are increasingly recognizing as just not one that’s acceptable from a public health standpoint,” he said.

He added, “This is one of the most severe air pollution conditions I’ve seen in litigating clean air cases in almost 30 years. … Here you actually have a coroner saying that somebody’s cause of death was likely this kind of pollution. And you have all these physicians in the area in northern Idaho calling for an end to this practice. It’s pretty remarkable. I don’t think we’ve seen that anywhere else in the country.”

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