EPA backs field burning
BOISE – Attorneys for the U.S. Justice Department and the Environmental Protection Agency have filed legal arguments saying there’s no need to clarify a January court decision on field burning in Idaho.
The decision initially was interpreted as banning the practice of burning crop residue, which has grown increasingly controversial because of the effect smoke has on human health. But the agencies now contend the court ruling allows burning to continue, even this year, while new rules governing the practice are considered.
“The court did not use the word ‘vacate,’ ” the lawyers wrote. The decision “need not be clarified,” they continued, because it merely sent the issue back to the EPA for reconsideration, rather than undoing the agency’s previous decision to allow burning.
That’s the opposite view of attorneys for Safe Air For Everyone, a Sandpoint clean-air group that won the case. It’s also the opposite of how attorneys for the state of Idaho initially interpreted the court decision. The directors of Idaho’s Agriculture and Environmental Quality departments toured the state in March to meet with farmers and tell them Idaho would allow no field burning this year.
The new interpretation surfaced after both Idaho Gov. Butch Otter and the state’s congressional delegation appealed to the EPA to let field burning continue in Idaho this year. The practice includes the annual burning of Kentucky bluegrass fields on the Rathdrum Prairie to prompt another crop without replanting, and burning to remove stubble from wheat fields elsewhere in the state.
SAFE was formed by Sandpoint-area physicians concerned about the impact of field smoke on respiratory patients. Smoke from prairie field burning tends to drift into the Sandpoint area.
Idaho lawmakers have fiercely defended the practice, even banning lawsuits against farmers over field smoke. That law passed too late to stop an earlier lawsuit from resulting in a settlement in which farmers paid hundreds of thousands of dollars in damages to North Idaho and Eastern Washington respiratory patients affected by smoke.
In the current case, SAFE challenged the EPA’s approval of amendments that Idaho submitted to the federal agency in 2005 – amendments that clearly legalized and regulated field burning.
Previous state plans for complying with the federal Clean Air Act had eliminated all mention of field burning as an exception to an overall ban on open burning. That happened in part because lawmakers had removed the authority of the state Department of Environmental Quality to regulate agricultural field burning, instead turning that duty over to the state Department of Agriculture. But the EPA ruled that field burning had been legal in Idaho all along, so the 2005 amendments could be approved as a mere “clarification.”
The 9th Circuit Court of Appeals in January found that conclusion “legally unsustainable.” Previous Idaho clean-air plans submitted to the EPA clearly made field burning illegal under federal law, the court found, meaning field burning had actually been illegal in Idaho since 1993.
As a result, the EPA would have to conduct a full analysis of any increased pollution the new plans would permit. Such an analysis could take years, and under the Clean Air Act could not result in the federal agency allowing increased air pollution in Idaho.
After the EPA informed the state that it believes the ruling allows the state to continue issuing field burning permits this year, SAFE asked the appeals court to clarify its January ruling.
The court ordered the EPA to respond this week. In their seven-page argument, the government lawyers wrote, “It is undisputed that agricultural burning always has been legal as a matter of Idaho law.” If the court’s opinion really means Idaho farmers outside Indian reservations – which weren’t subject to the ruling – can’t burn their fields this year, it “would effectively make unlawful an activity that has been legal in Idaho for decades,” the Justice lawyers argued.
They countered SAFE’s examples of previous cases in which disputed rules were “vacated” with several examples in which a disputed rule was left in place. “As this court has held, ‘When equity demands, the regulation can be left in place while the agency follows the necessary procedures,’ ” they wrote.
The court is expected to rule in the coming weeks.