A class action lawsuit filed in Florida last week attacks sugar cane field burning in Florida.

Plaintiffs allege that the burning of sugar cane fields puts smoke containing particulate matter (PM) dioxins, polycyclic aerobatic hydrocarbons (PAHs), volatile organic compounds (VOCs), sulfur oxide, nitrogen oxides, and carbon into the air. Plaintiffs and class members claim these gases fall on plaintiffs’ properties and they breathe in the pollutants.

Some of the named plaintiffs live in Palm Beach County and claim to be exposed to alleged hazardous and dangerous air pollutants from defendants’ sugar cane field burning. The plaintiffs name major sugar cane growing companies including the Fanjul family which has companies including sugar cane mills, refineries, and distilleries. Another famous name includes the King Ranch.

How cane harvest works

Florida sugar cane harvest involves thousands of acres in Glades and Hendry counties (see map). Plaintiffs complain that pre-harvest burning “…consists of setting large fires to whole sugarcane fields to burn off the outer leaves from the cane stalks, which are full of water and thus do not ignite or burn.”

The purpose of this pre-harvest burning is to make it easier to harvest the sugarcane stalks and “…reduce danger from snakes and insects…and to increase the sugar content of the stalk by water evaporation.”

‘Black snow’

The burning emits smoke and “…a stench into the air, causes small pieces of black ash [to] rain down over surrounding contiguous counties of Palm Beach, Glades, and Hendry.” The toxic smoke is referred to as “black snow.”  Plaintiffs allege it negatively impacts the workers as well as community residents.  “Falling “black snow” ash not only causes and manifests medical conditions such as respiratory problems within the community, it also discolors cars, homes, and office buildings.”  

Plaintiffs’ allege as a state, “…Florida has the most crop burning residue emissions, emitting 17% of the national CO₂, CO, and PM_2.5 emissions, 12% of all annual PM₁₀ emissions, and 9.5% of all CH₄ (methane) emissions from crop residue burning.” (It is interesting methane is mentioned because wetlands, numerous in Florida, are a natural source of methane. Termites also emit methane.)

Plaintiffs in this case allege wrongful and negligent conduct.

New attack on ag practices

The complaint includes common law counts for negligence, strict liability for ultrahazardous activity, strict liability under Florida statute 376.313, trespass and nuisance. Using the common law seems to be a new attack on agriculture practices because plaintiffs frequently lose cases where there is an allegation of a violation of a federal or state statute. (My team handled a similar burning case in Idaho where plaintiffs used federal statutes to stop burning and they failed.  We also won in the 9^th Circuit Court of Appeals.)  

Class Action plaintiffs also claim they have “…experienced significant diminution of [their] real property value and will continue to experience these diminutions so long as Defendants’ continue utilizing the hazardous and dangerous pre-harvest burning process.“

In addition, pesticides, fungicides and herbicide use is attacked. The use of large spraying machines and crop-dusting aircraft causes substances to float onto plaintiffs’ property and detrimentally affects their property values. The plaintiffs have no proof of the health effects but claim “Upon information and belief the residents of the Affected Area have experienced a much higher incidence of adverse health effects, including respiratory conditions such as asthma, due to the air pollution created by Defendants’ pre-harvest sugarcane burning.”

The complaint cites studies showing air pollution “may” cause health problems but do not list any individuals exposed to hazardous air pollutants. The complaint even includes studies from Mexico and Brazil showing how burning harms individuals.

The plaintiffs suggest over 40,000 people in the three counties may be affected by the burning, which Defendants’ say are negligent or reckless. The complaint also seeks injunctive relief, a medical monitoring program for all class members and of course a demand for a jury trial.

This is a case where the Florida Right to Farm Act will be tested.      

The opinions of the author are not necessarily those of Farm Futures or Farm Progress.