Clean-air group to continue legal case

BOISE – A clean-air group is willing to join talks with the governor over field burning but won’t drop a petition it filed to clarify whether a January federal court ruling blocked field burning in Idaho.

Safe Air For Everyone, a Sandpoint-based group started by physicians concerned about the effect of field smoke on their respiratory patients’ health, sent a letter to Gov. Butch Otter on Friday refusing to suspend its legal action.

While Otter’s office said the governor was disappointed in the decision, SAFE Executive Director Patti Gora said her group decided not to comment. “We just wanted to make sure people knew that we did respond in a timely way to the governor’s request,” Gora said.

Otter on Monday sent out a call for negotiations to all sides, including five farm organizations and SAFE, in the dispute over field burning. “The ground rules for negotiation are simple – all litigation must be suspended,” Otter wrote in that statement. “Any parties with pending motions before the 9th Circuit must agree to request a stay for the duration of our discussions. Likewise, no burning permits will be requested or issued during negotiations.”

Idaho stopped issuing field burning permits this year after the 9th Circuit U.S. Court of Appeals ruled in January that burning actually has been illegal in Idaho under federal law since 1993 and ordered the Environmental Protection Agency to start over in its consideration of Idaho’s formal plan for complying with the federal Clean Air Act on that basis.

Ironically, efforts by the Idaho Legislature over the years to protect field burning may have contributed to the court result, because lawmakers removed the state Department of Environmental Quality’s authority to regulate field burning for a number of years.

The state proposed amendments to its implementation plan for the Clean Air Act in 2005 to clearly legalize and regulate field burning, and the EPA approved those amendments on the basis that field burning had been legal in Idaho all along. However, the court held that the absence of field burning regulations from the state’s plan in the intervening years meant it had been illegal under federal law – and legalizing it now would require an extensive review of the effects of the pollution from the smoke.

Late last week, the EPA, in response to a letter from Otter, informed the state that its interpretation of the court decision was that the state could continue issuing permits while the agency went through its additional reviews, which could take several years. That came as a surprise to state officials, who had determined earlier that the court decision blocked all field burning in Idaho outside of Indian reservations, which weren’t subject to the court case.

Otter’s call for negotiations was issued on the deadline for further motions in the 9th Circuit case, which could have included requests for reconsideration or for clarification. Otter declined to ask for clarification. SAFE filed its petition for clarification shortly before Otter sent out his call.

SAFE’s court filing stated, “EPA’s advice to the state could promote noncompliance with this court’s judgment,” which the petition called “an unlawful and unjust result.”

Otter asked all sides to respond to his call for negotiations by Friday.

“We got response from all five of the growers (groups), and they indicated their willingness to participate without any conditions,” Jon Hanian, Otter’s press secretary, said Friday. “SAFE said that they would be willing to participate, but they put a condition on their participation, and that was that they would not stay their motion currently pending in the court.”

Hanian said Otter viewed it as “a setback” but wasn’t ruling out negotiations entirely. “We’re disappointed that there were conditions placed on their participation when the growers said they’d be willing to live by those ground rules,” Hanian said. “Let’s see if between now and mid-next week we might be able to see if we can change what appears to be, at this point at least, an unfortunate outcome.”

Unlike SAFE, the growers had no court action pending when Otter issued his call for negotiations.

Otter, in a statement Friday, said, “I appreciate the positive responses I received, but I was disappointed that SAFE refused to stay its pending litigation. It remains my hope to find a mutually acceptable solution for all Idahoans.”