News and Events Involving Environmental Law, Published by Chicago Environmental Attorney Dave Scriven-Young
of Peckar & Abramson, P.C. -- (312) 239-9722
Archive for October, 2009
  • U.S. EPA Releases Air Monitoring Data for Chicago School

    Posted by on October 30, 2009
    U.S. EPA Region 5 recently released the first set of air monitoring data for St. Josaphat School, which is a Catholic elementary school located at 2245 N. Southport in Chicago. The data was gathered as part of the Schools Air Toxics Monitoring Initiative that is designed to show whether long-term exposure to toxic chemicals in the outdoor air poses health concerns for children and staff at 63 s...
  • Deal Exempts Steamships on Great Lakes From Air Pollution Requirements

    Posted by on October 29, 2009
    According to this story from the Associated Press, a deal struck in Congress will "effectively exempt 13 ships that haul iron ore, coal and other freight on the Great Lakes from a proposed federal rule meant to reduce air pollution." The rule was designed "to reduce emissions of airborne contaminants blamed for smog, acid rain, respiratory ailments and possibly cancer. Large ships are leadi...
  • U.S. EPA’s New Risk Analysis for Solvent-Contaminated Wipes Rule

    Posted by on October 28, 2009
    Yesterday, U.S. EPA published in the Federal Register a Notice of Data Availability inviting comments on a revised risk analysis for proposed revisions to regulations governing solvent-contaminated wipes. A wide variety of industries use wipes (including rags, shop towels, disposable wipes and paper towels) for cleaning and degreasing.  Those wipes are handled in various ways.  For exampl...
  • US EPA Proposes Rule Limiting Reach of Greenhouse Gas Regulations

    Posted by on October 27, 2009
    Today, U.S. EPA published a proposed rule in the Federal Register (the "Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule") that addresses which companies will be affected by the regulation of greenhouse gases in the near future. In March 2010, U.S. EPA expects to finalize and promulgate its light-duty motor vehicle rule, which will control greenhouse gas emi...
  • “Green” Gas Station in Deerfield

    Posted by on October 25, 2009
    Recently, the Chicago Tribune reported on a "green" gas station.  According to the article, the station earned green certifications from the Green Business League and the village of Deerfield. The station features energy-saving motion sensors on the light switches and tap faucets, as well as a 52-gallon barrel near the gas pumps to collect rainwater runoff from the overhead canopy.  It also...
  • International Day of Climate Action

    Posted by on October 24, 2009
    Today is the International Day of Climate Action.  Environmental groups from around the globe are organizing events to gain support for an international climate change treaty.  Their goal is to bring down the concentration of carbon dioxide (CO2) in the atmosphere to 350 parts per million.  This is what some scientists are now saying is the safe upper limit for CO2 in our atmosphere...
  • “Healthy” House in Long Grove

    Posted by on
    There has been a lot of talk in the news about "green" construction.  But most of the discussions deal with commercial buildings. A recent article in the Chicago Tribune reported on a house that was built by Dior Builders according to the Health House Builder Program sponsored by the American Lung Association.  A "healthy" home has the following components: foundation waterproofing and mo...

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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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