Open Field Burning of Grass Residue: An Injury without a Remedy?

Saral, Katherine
August 2005
Ecology Law Quarterly;2005, Vol. 32 Issue 3, p603
Academic Journal
In Safe Air For Everyone v. Meyer, a three-judge panel of the Ninth Circuit upheld an Idaho district court's dismissal of a citizen suit under the Resource Conservation and Recovery Act (RCRA) that had challenged grass growers' practice of conducting open field burns of crop residue. This note argues both that the court was wrong to conclude that RCRA did not cover the plaintiffs' claim and that its dismissal of the case on summary judgment was not warranted because disputes of material fact between the parties still existed. The note explains why the Clean Air Act did not provide a basis for plaintiffs to halt grass growers' open field burning and why they had to resort to RCRA in order to make out a federal claim. The note contends further that RCRA allows citizens to bring suit for air pollution caused by crop residue burning and, therefore, that the court should have at least permitted the case to proceed beyond summary judgment and be decided on the merits after a complete hearing. Finally, the note suggests that conduct that creates pollution that crosses state boundaries ought to be treated as a federal issue and, thus, that a federal remedy ought to be available. If open field burning may not be enjoined under any federal statutes, then the persistence of un-redressed harms caused by the resulting pollution signals a gap in the set of federal laws designed to protect human health and the environment.


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