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--></style><title>Ninth Circuit rules against field
burning</title></head><body>
<div><tt><font color="#000000">Court orders review of field
burning<br>
<br>
By Betsy Z. Russell<br>
Staff writer<br>
January 30, 2007<br>
<br>
Field-burning has actually been illegal in Idaho under federal law
since 1993, a federal appeals court ruled Tuesday.<br>
<br>
"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.<br>
<br>
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.<br>
ADVERTISEMENT<br>
<br>
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."<br>
<br>
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.<br>
<br>
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.<br>
<br>
"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.<br>
<br>
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."<br>
<br>
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.<br>
<br>
"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.<br>
<br>
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."<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.</font></tt></div>
<div><tt><font color="#000000"><br>
"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."<br>
<br>
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.<br>
<br>
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.<br>
<br>
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."</font></tt><br>
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