News and Events Involving Environmental Law, Published by Chicago Environmental Attorney Dave Scriven-Young
of Peckar & Abramson, P.C. -- (312) 239-9722
Archive for 2009
  • Illinois Pollution Control Board’s Annual Report for 2009

    Posted by on December 30, 2009
    The Illinois Pollution Control Board recently issued its Annual Report for 2009. The Annual Report features a letter from Chairman Girard, biographies of the Board's members, a rulemaking summary, a summary of appellate court opinions reviewing the Board's decisions, and a summary of environmental legislation. Stay tuned to the Illinois Environmental Law Blog for more news and dev...
  • Waste Management Settles State Enforcement Action Alleging Water Pollution Violations

    Posted by on December 28, 2009
    On December 17, 2009, the Illinois Pollution Control Board accepted the settlement of a State enforcement action in the case of People v. Waste Management of Illinois, Inc., No. PCB 10-29.  The case concerns a site located in Galesburg, Knox County, Illinois. The State's complaint alleged that Waste Management (1) discharged material containing solids and liquids of obvious color from a garba...
  • Ohio Joins U.S. Supreme Court Fight Regarding Asian Carp

    Posted by on December 26, 2009
    On December 23, 2009, the State of Ohio filed a brief in the U.S. Supreme Court supporting the State of Michigan's complaint seeking action to prevent the Asian carp from infiltrating the Great Lakes.  Like Michigan, Ohio blames Chicago's prior water diversion projects for giving the Asian carp access to the Great Lakes.  Here is the specific action requested by the State of Ohio: "But fo...
  • Plastic Bag Manufacturer Settles State Enforcement Action Alleging Air Pollution Violations

    Posted by on December 24, 2009
    The Illinois Pollution Control Board recently accepted the settlement of a State enforcement action in the case of People v. Golden Bag Co., PCB No. 06-144.  The case concerned a plastic bag manufacturing facility located at 290 Illinois Street, Dundee, Kane County, Illinois. The State alleged that the Defendant (1) caused, threatened, or allowed the discharge or emission of a contaminant i...
  • Packaging Materials Manufacturer Settles Federal Enforcement Action Alleging Hazardous Waste Violations

    Posted by on December 22, 2009
    On December 22, 2009, U.S. EPA announced that it settled an enforcement action against Clear Lam Packaging, an Elk Grove, Illinois manufacturer of flexible and rigid packaging materials. U.S. EPA alleged that Clear Lam "failed to have a hazardous waste storage permit, maintain aisle space in the hazardous waste storage area, keep hazardous waste containers closed, provide annual employee tra...
  • Michigan Sues to Spark Action to Block Asian Carp

    Posted by on December 21, 2009
    On December 21, 2009, the State of Michigan filed a petition and motion for a preliminary injunction asking the U.S. Supreme Court to order the State of Illinois, the Metropolitan Water Reclamation District of Greater Chicago, and the U.S. Army Corps of Engineers "to immediately take all available measures within their respective control, consistent with the protection of public health and ...
  • Rejecting Federal Officer Removal, Federal Court Remands Contamination Case to State Court

    Posted by on December 20, 2009
    On December 15, 2009, the U.S. District Court for the Southern District of Illinois remanded the case of Custer v. Cerro Flow Products, Inc., No. 09-514-DRH, to State court, rejecting the defendants' purported removal to Federal court based on the Federal Officer Removal Statute. The Plaintiffs filed a lawsuit in State court alleging that they suffered serious life-threatening illnesses, incl...

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    The Seventh Circuit Court of Appeals recently upheld the federal government’s ability to criminally prosecute environmental activists who destroy property under the federal Animal Enterprise Terrorism Act (“AETA”).

    In United States v. Johnson, the defendants travelled from Los Angeles, California to a mink farm in Morris, Illinois. The mink farm was in the business of breeding, raising, and selling minks to fur manufacturers. At the mink farm, the defendants released approximately 2000 minks from their cages. They also removed portions of the fence surrounding the mink farm to help the minks escape, and they destroyed the minks’ breeding cards, which were needed to sell the minks to a furrier. In addition, they poured caustic substances on two farm vehicles and spray-painted the words “Liberation is Love” on a barn. The vandalism caused between $120,000 and $200,000 worth of damage. The defendants then began traveling to a fox farm in Roanoke, Illinois, which bred foxes to sell to fur manufacturers. They planned to damage the fox farm as well, but they were arrested by local law enforcement before they arrived at the fox farm. The defendants were charged in state court with possession of burglary tools and were convicted. They were sentenced to 30 months imprisonment.

    Then, the defendants were charged with violating the AETA by the federal government. Count I of the indictment alleged that they conspired to travel in interstate commerce for the purpose of damaging and interfering with the operation of an animal enterprise, and in connection with that purpose, damaged the property of an animal enterprise. Count II alleged that the defendants damaged real and personal property used by an animal enterprise. The defendants moved to dismiss the indictment against them, asserting that the AETA was facially overbroad, was unconstitutionally vague, and violated substantive due process because it labeled persons who committed the act as “terrorists”. The District Court denied the motion to dismiss.

    The Seventh Circuit affirmed the District Court’s ruling that rejected all of the defendants’ arguments. In particular, the defendants suggested that the AETA prohibited advocacy that caused damage to only intangible property such as profits or goodwill. The court rejected that argument and held that the AETA prohibited destruction of or damage to tangible items and property owned by the animal enterprise. In fact, the court looked at the legislative history of the AETA, which reinforced the conclusion that it was not intended to criminalize speech or expressive conduct that caused damage only to the animal enterprise’s profits or goodwill. Several legislators made statements indicating that, while the statute was being passed to combat the violence being perpetrated against animal enterprises as well as people and entities connected to animal enterprises, Congress was aware of the importance of protecting the First Amendment right to engage in lawful protest against animal enterprises. In particular, the court looked at a speech by Senator Feinstein stating: “I fully recognize that peaceful picketing and public demonstrations against animal testing should be recognized as part of our valuable and sacred right to free expression. For this reason, all conduct protected by the First Amendment is expressly excluded from the scope of this legislation. This law effectively protects the actions of the law-abiding protester while carefully distinguishing the criminal activity of extremists.” In summary, the court found that the text of the statute as well as the legislative history made clear that the statute does not criminalize speech or expressive conduct that causes damage only to intangible profits or goodwill of an animal enterprise.

    The Seventh Circuit had an easy task in this case, deciding to interpret the statute to criminalize destructive conduct but keeping the door open to reasonable protests that do not harm private property. Environmental activists need to be aware of this line in the sand that has been drawn by Congress and the courts.
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