[Vision2020] Ninth Circuit rules against field burning

[Mark Solomon]

Court orders review of field burning

By Betsy Z. Russell
Staff writer
January 30, 2007

Field-burning has actually been illegal in Idaho 
under federal law since 1993, a federal appeals 
court ruled Tuesday.

"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.
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Patti Gora, executive director of Sandpoint-based 
SAFE, said, "The agency needs to get back to the 
business of protecting human health. Š 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, it 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, a 
practice that 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 their 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.State 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 
big 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. Š 
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 
suffers from 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. Š 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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