It is time to ban field burning

By Dan Galpern

Published: Tuesday, February 6, 2007

 

The debate over field burning in Oregon is heating up in light of a confluence of events. In Salem , several legislators are considering introducing a bill to ban field burning of grass seed residue. The aim of the bill would be to protect public health from harmful smoke. The seed industry has mounted a campaign to press legislators to forswear their support even before the measure receives a hearing.

 

The legislative debate occurs just months after federal regulators decided to require states to regulate fine particulate matter - so-called PM2.5, which is air pollution containing particles that are less than 2.5 micrometers in diameter. Such particles, commonly found in smoke from burning fields, are too small to be filtered effectively by the upper respiratory system. They can travel to the alveoli at the base on the lungs, and affect the rest of the cardiovascular system.

 

Moreover, a decision last week by a panel of the 9th U.S. Circuit Court of Appeals rendered field burning in Idaho illegal, in part because of evidence that field smoke harms human health.

 

In SAFE Air vs. U.S. Environmental Protection Agency, the court ruled that Idaho 's State Implementation Plan under the Clean Air Act forbids open burning of seed and cereal crop residue. The court ruled that because the EPA had approved the state's plan, the Idaho plan con- stitutes valid federal law. When Idaho tried to revise its plan to allow field burning, the citizen's group SAFE Air objected on the ground that the Clean Air Act prohibits backsliding, so that a state cannot relax its federally approved standards in a way that reduces air quality.

 

In response, EPA said that Idaho 's plan really permitted field burning, despite what the court described as its "clear-as-day" prohibition. EPA based its interpretation on Idaho 's "overall approach to field burning" and other indications that Idaho 's plan did not mean what it said.

 

The court rejected EPA's approach as contrary to the fundamental rules of statutory construction, noting that it would follow the plan's plain meaning unless that produced an absurd result - and there was nothing absurd about a field burning ban. The record before the court included evidence that clouds of field smoke present "particularly severe health consequences for individuals with respiratory ailments."

 

Oregon 's law relating to field burning is no less schizophrenic than Idaho law, though in different ways. Oregon 's declared policy is "to restore and maintain" air quality "as free from air pollution as is practicable" and, toward that end, to "reduce the practice of open

field burning." But Oregon law also requires the state to grant permits to growers to burn tens of thousands of acres annually.

 

Moreover, state law insulates growers from liability to private nuisance and trespass suits that might otherwise be brought by neighbors and others downwind who are unable to breathe or safely enjoy their property when it is inundated by smoke from burning fields.

Many Oregonians are harmed by the effects of field burning smoke, no less so than residents of other states. EPA scientists have noted that exposure to PM2.5 is implicated in aggravated asthma, chronic bronchitis, reduced lung function, irregular heartbeat, heart attack and premature death in people with heart or lung disease. A 2006 study in the Journal of the American Medical association found that even short-term exposure to PM2.5 increases the risk for hospital admission for cardiovascular and respiratory diseases.

 

In 1998, Washington state banned open burning of grass seed fields after finding the public health costs to be too great and recognizing that practical mechanical residue management practices exist. Oregon is now the only Northwest state in which field

burning is lawful.

 

The choice before legislators is clear, even as the air in the Willamette Valley on burn days is not: We can continue to permit field burning for the benefit of a few, or we can protect the health of all Oregonians.

 

Dan Galpern of Eugene is an attorney with the Western Environmental Law Center .