MIAMI — A lawsuit filed on behalf of 10 residents of towns south of Lake Okeechobee who claim to have been harmed by the ash and particulates from sugarcane burning uses hypothetical modeling data rather than the actual air quality data available from the Florida Department of Environmental Protection, according to the response filed Aug. 5 by the attorneys for the defendants.
The lawsuit claims modeling indicates “projected” concentrations of particulate matter hundreds of times higher than the actual air quality data collected by the Palm Beach County Health Department.
“The court previously dismissed plaintiffs’ First Amended Complaint (FAC) because plaintiffs’ allegations against the entire sugar industry across all of an approximately 675-square mile area were far too generic to plausibly trace their alleged injuries to each defendant,” the response states. “The court allowed plaintiffs an opportunity to amend to attempt to cure the standing deficiencies … Plaintiffs responded by filing the Second Amended Complaint (SAC), which attempts to address standing by using air modeling without any actual air quality data.”
These “models project air quality that is comparable to or far worse than air quality in the vicinity of significantly larger emission events like the Mount St. Helens volcanic eruption and the recent massive Camp Fire in California. In short, plaintiffs offer an unexplained model that spits out pure fiction — a conclusory set of numbers with no plausible basis — and does not come close to curing the standing defects the court found in plaintiffs’ prior complaint,” the defendants argue.
The plaintiffs claim the model shows a high level of particulate matter of 3,934 micrograms per cubic meter in 2016, while actual monitoring by Palm Beach County Health Department shows the high for that year was 22.9 micrograms per cubic meter on July 5, 2016. Defendants also note the highest particulate levels documented by the health department were in June, July, August and September, which are not months in which sugar cane is burned, indicating the particulates came from other sources.
The response continues, “The most concrete and particularized injury alleged in the SAC involves cane ash falling on plaintiffs’ properties and vehicles, but — contrary to the direction issued by the court — the SAC makes no attempt to trace cane ash to each defendant.”
The response also notes that photos of cane burning included in the SAC show the smoke going straight up, in an otherwise blue sky, not affecting adjacent properties. The SAC does not attribute the photos to any particular location. The defendants point out that one photo was taken in Maui, not Florida.
Senior Director of Corporate Communications and Public Affairs at U.S. Sugar Judy Sanchez issued the following statement: “Publicly available air quality monitoring data maintained by the State of Florida has shown, and continues to show, that the Glades communities have some of the best air quality in the state. This is a science-based fact, supported by actual data. The hypothetical, preliminary model included in the plaintiffs’ second amended complaint is a nonsensical misrepresentation of reality and is a disservice to our community. This is unfortunate, but not entirely unexpected, given the historical play book of those who willingly ignore data and use baseless claims to attack our communities.
“As farmers, we rely on proven science and data to inform our daily growing and harvesting decisions. Just as important, we live in this community and take very serious our responsibility to be good neighbors and stewards of our environment. That is a commitment we will never waver on or compromise.”
• The class action lawsuit was filed June 4, 2019, against Florida Crystals, Sugar Cane Growers Cooperative of Florida, U.S. Sugar Corporation, Flo-Sun Inc., American Sugar Refining Inc., Okeelanta Corp., Osceola Farms, Sugarland Harvesting, Trucane Sugar Corp., Independent Harvesting Inc., King Ranch Inc., J&J Ag Prodcuts Inc. and DOES 1-50. The complaint had two plaintiffs, Clover Coffie and Jennie Thompson.
• The first amended complaint was filed Aug. 28, 2919, and lists three plaintiffs, adding Shante LeGrand.
• On May 8, 2020, United States Southern District of Florida Judge Rodney Smith dismissed much of the amended lawsuit. The court permitted plaintiffs to attempt to re-plead only three of the seven counts.
In the court order, U.S. Southern District of Florida Judge Rodney Smith noted, “There is nothing in the amended complaint showing that each of the plaintiffs has been harmed by all of the defendants … Unlike the plaintiffs in the cases cited by plaintiffs, who sued one or two defendants, plaintiffs here have sued virtually an entire industry involving what amounts to dozens of actual sugarcane growers. Additionally, the cases cited by plaintiff all involved waterways which have a unidirectional flow, unlike wind patterns, which change. There is nothing in the amended complaint alleging that plaintiffs have been exposed to smoke and ash from all of these dozens of sugarcane producers.”
The judge’s ruling also stated, “Defendants maintain that sugarcane burning falls squarely within the Right to Farm Act: It is a generally accepted agricultural management practice, as evidenced by the fact that it is statutorily permitted and regulated by the Florida Forest Service, and there are no allegations that preharvest burning was a nuisance to anyone at the time these farm operations commenced.”
The order also references the “air quality in Florida is monitored and regulated by FDEP (Florida Department of Environmental Protection) which sets standards for air quality.”
• On June 22, the plaintiff filed a second amended complaint. In this complaint, the defendants claimed “Preliminary air dispersion modeling by Plaintiffs demonstrates to a high degree of certainty that byproducts from burning conducted by each Defendant impacts receptors in all seven communities in the class area, and that Defendants’ burning cumulatively exceeds air quality standards.” The first amended complaint had three plaintiffs. This complaint now has 10 plaintiffs: William Armstrong of Moore Haven, Gloria Atkins of Clewiston, James Brooks of Clewiston, Clover Coffie of Belle Glade, Debra Jones of Pahokee and Shante Legrand of Belle Glade, Donald Mcclean of South Bay, Robert Reimbold of Moore Haven, Elijah Smith of Clewiston and Linda Wilcher of South Bay.