Clearing the air

By Diane Dietz
The Register Guard
Published: Sunday, July 15, 2007

If Lane County sues to try to stop Oregon grass-seed growers from burning fields, it can win, said Stan Long, an attorney who spent the mid-1970s in court battling the practice for the city of Eugene.

But the case won't be fast or cheap, Long said, echoing advice he gave the city 30 years ago.

"If you choose to fight," he said in an interview, "you'd better pull your hat down because it's going to be a rough ride."

Commissioners have huddled in recent weeks behind closed doors with a lawyer from the Eugene-based Western Environmental Law Center to discuss a possible lawsuit to stop the burning that sends harmful particulate matter billowing into the air. Prominent private attorney Art Johnson of Eugene has volunteered to help.

So far, the commissioners and attorneys decline to discuss what legal strategies they might use.

Questions include: Would the county sue in Linn County because that's where much of the burning is done? Or would commissioners sue downwind in Lane County because that's where people with lung problems have a hard time during field burns?

Would the commissioners seek remedy under the federal Clean Air Act? Or would they use state nuisance and trespass laws, the backbone of much environmental law?

Whatever they did, they could expect a brisk response from the grass-seed industry, which beat back legislative efforts this spring to stop the burning.

Any court fight would take place against a body of Oregon field-burning cases, largely from the 1970s. Lawyers also would have to take into account precedent-setting cases in the Idaho courts, where a group started by lung doctors has sought to stop field burning with a half-dozen lawsuits so far this decade.

"We see an enormous amount of suffering," said Patti Gora, executive director of Safe Air For Everyone, an Idaho anti-burning group. "If you cannot breathe, nothing else matters."

One fact to keep in mind: In Oregon as in Idaho, legislatures historically are friendly to the field burners, but courts tend to side with the breathers.

Acrid intruder

Field burners and their foes have clashed in statehouses and courtrooms for nearly four decades, and many of their arguments are familiar.

Critics of burning note that all but 10 percent of Oregon grass seed is grown and harvested each year without burning and the industry still prospers. Farmers say they need the option of using flame to kill pests and weeds.

Critics say the smoke is harmful; farmers respond that the best way to clean up Lane County's air is for residents to cut down on wintertime wood stove use, because wood stoves pump way more harmful particulate into the air.

Earlier this summer, the Lane County Board of Commissioners petitioned the state government to issue an administrative ban on field burning as a health hazard. That request is pending.

Commissioners had hoped to win the ban before the summer burning began. But the season started last week with a burn that sent smoke rolling into Eugene.

Several county commissioners - who've battled field burning for decades - say the courts may be the venue for winning the battle.

Lane County might choose the centuries-old path of nuisance and trespass - although the grass-seed industry says state law largely protects farmers from such suits.

A nuisance is an act that "substantially interferes" with the use and enjoyment of a person's property, said William Rodgers, a founder of contemporary environmental law and professor at the University of Washington law school. A trespass is an unwelcome substance coming and her mother would leave home to spare the girl's lungs, her attorneys told the court.

Alexandria and the others represented a legal class made up of everyone suffering from inflammatory airway conditions in a trio of Idaho counties and one eastern Washington county. People with asthma and other chronic lung disease were included.

Idaho District Court Judge John Mitchell heard medical evidence from both sides.

The farmers' medical expert - a UW professor - said no large epidemiological studies linked field burning with health problems; when pressed in court, he said that "no doubt" field burning distressed some individuals.

The judge, in his order to halt burning, wrote that clinical evidence of harm was overwhelming and uncontradicted.

"The farmers could say that the citizens could simply move away during the two month burn period," he wrote. "That would still be great injury to be forced with the Hobson's choice of staying at your home and risking health problems, or moving away from your family, job, school and home.

"What if a citizen guessed wrong and stayed, hoping the smoke wouldn't come their direction this year? If they guess wrong and don't get out in time they could suffer irreparable and great injury, or death, the ultimate irreparable injury."

The ruling was a huge victory for foes of field burning.

"They won it hands down. They prevailed completely - and then in walks the Legislature," Rodgers said.

Seven months after Mitchell's ruling, the Idaho Legislature passed a "right to farm" law that granted grass-seed farmers broad immunity from trespass and nuisance lawsuits. The farmers could burn again.

Oregon lawmakers also active

Oregon saw a similar turn of events in the 1990s. In March 1992, the Oregon Court of Appeals ruled that a Brownsville farmer was liable for damages under nuisance and trespass laws when his smoke drifted onto nearby property.

The neighbors asked for money for soot removal and compensation for physical and emotional distress. The court found that a heavy pall was on their property at times and a smoky odor lingered for several days.

More nuisance and trespass lawsuits might have followed, snuffing out field burning then and there, the legal scholars said.

But the 1993 Oregon Legislature passed a "right to farm bill" granting farmers immunity from nuisance and trespass lawsuits as long as the offending activities were otherwise lawful and considered a common and acceptable farming practice.

Dave Nelson, executive director of the trade group Oregon Seed Council, recently told the Salem-based Capital Press agricultural newspaper that that law will still stop any lawsuit in its tracks.

"The right-to-farm statute clearly preempts any legal action against normal accepted farm-use practices that occur in an exclusive farm-use zone," he said.

Nelson declined to comment for this article.

But the Oregon Legislature left a caveat in the law: A nuisance and trespass lawsuit could succeed if the farm practice caused death or serious physical injury.

The definition of serious physical injury means a life-threatening exposure or an exposure that would cause persistent disfigurement, health effects or damage to the function of any bodily organ.

Jim Johnson, land use coordinator for the Oregon Department of Agriculture, is frequently subpoenaed to testify in court about whether a particular activity is considered a common and accepted farming practice.

"It's very situation specific," he said. "What's common and accepted in one part of the state might not be in another. What's common and accepted for one commodity might be different for another commodity."

Johnson says he knows of no lawsuits where a judge has ruled whether field burning is a common and accepted practice - or in which a plaintiff argued that smoke had caused serious physical injury.

"There's so much science floating around right now on both sides on the field burning and the smoke situation. It could really come down to who's got the most credible evidence or who's got the best evidence," Johnson said.

Public injury?

The county commissioners might pursue another twist: a public nuisance and trespass suit.

Such a suit would have to show that field burning is "injurious to an interest of the public at large," said Rodgers, the UW professor.

The commissioners would "have to prove substantial injury to the public health, public safety. They'll have to show this affects a substantial portion of the population that has asthma now," he said.

In a Washington field- burning case decided in fall 2000, U.S. District Court Judge Robert Whaley temporarily stopped field burning. He wrote: "There is significant evidence in the record that agricultural burning may pose a significant threat to public health."

Now, virtually no grass-seed field burning takes place in Washington. In 1998, the state ruled that mechanical removal of the grass residue was a reasonable alternative to burning and all but banned the practice.

If a judge were to find public injury, the next step would be to balance that against the private benefit.

Since the 1970s, Oregon grass-seed farmers have said they need to use field burning to kill weeds and meet customers' demands that their seed is free of contaminants such as weed seeds.

In 1976, Willamette Valley growers argued that the industry would collapse if they couldn't burn 282,000 acres that summer. But burning has been reduced - in 1998, the Legislature set burning at 65,000 acres a year, where it stands today - yet the industry thrives.

Now in the Willamette Valley, only 140 of the 1,400 grass-seed farmers burn, state records show. The rest have found other ways to get rid of waste straw and clean their fields.

The grass-seed industry has been the "model of long-term growth for decades," said Pat O'Connor, the state's regional economist for the central Willamette Valley.

Last year, grass-seed farmers saw a "huge," 30-percent jump in their crop value, according to specialists at Oregon State University. Seed prices are so promising that Willamette Valley farmers are converting sweet corn fields to grass seed, the Capital Press newspaper reports.

Federal challenges

In the past, lawyers in Idaho and Oregon have managed to block burning - for a time - by bringing claims involving the federal Clean Air Act.

However, the plaintiffs didn't argue that field burning violated the act's National Ambient Air Quality Standards - the air pollution standards laid down by the U.S. Environmental Protection Agency.

Even in the heaviest days of field burning in both Idaho and Oregon, the smoke didn't violate federal standards. That's because the federal standards are based on 24-hour averages of particulate matter in the air. Field smoke intrusions are briefer and more intense, and often don't register when a day's measurements are averaged.

So the lawsuits attacked burning obliquely.

At the start of the 1979 field-burning season, attorney Long got a Marion County Circuit Court judge to severely restrict burning in Oregon because state environmental officials weren't enforcing the acreage burn limits they'd spelled out in the State Implementation Plan. State officials write the implementation plans to show the federal government how they will obey the Clean Air Act.

The state responded to the ruling by rewriting the state plan in order to increase the acreage burn limit.

In Idaho this year, a lawsuit under the Clean Air Act has blocked field burning for the foreseeable future.

In Idaho as in Oregon, grass-seed growers dislike being overseen by state environmental officials. In both states, lawmakers handed the day-to-day field-burning oversight to state agriculture officials.

In Idaho, that backfired on the industry when environmental officials revised the state's air quality implementation plan to generally ban all kinds of open burning and did not exempt field burning.

The state later tried to add a field-burning exemption, and the EPA approved the move.

However, the Safe Air For Everyone group challenged the come-lately change in court and won.

A three-judge panel from the 9th Circuit Court of Appeals said the EPA's approval was "legally unsustainable."

Afterward, the EPA insisted the court ruling wasn't a ban, and told the state that farmers could burn this year.

But in May, the 9th Circuit panel clarified, saying it had "vacated" the EPA approval and that field burning was finished until Idaho overhauled its state implementation plan, including an analysis of the particulate volumes that field burning puts into the air.

The process could take months or years.

Oregon plan faulted

A University of Oregon law professor, John Bonine, believes that Oregon's implementation plan is also illegal in its prescriptions for field burning. An authority on the subject, Bonine served as an EPA associate general counsel in the mid-1970s.

Oregon's plan runs afoul of federal law because it relies on the state's smoke management program to guide field smoke away from Eugene and thereby also away from the air quality monitoring stations in the city, Bonine said. That violates the act's anti-dispersion provision.

That provision prohibits a factory from building a taller smokestack to avoid an air pollution monitor, or running the plant only when the wind blows the opposite way, in order to expressly avoid pollution detection, he said.

"The statute is very clear that this is prohibited - and it was certainly illegal when the EPA approved (the state plan), but it wasn't challenged," Bonine said.

Bonine said the state plan could be open to challenge by a lawyer who presented "significant" information that wasn't available when the plan was approved.

But David Collier, a top manager at the Oregon Department of Environmental Quality, said the Clean Air Act's anti-dispersion clause doesn't apply to field burning.

The federal law is "pretty clearly about industrial facilities, so it's pretty narrow. It's really a smokestack regulation.

"There is no engineering or process design in the activity of field burning," he said.

"The way you try to minimize emissions from field burning is to do it under the best dispersion techniques that you can."