News and Events Involving Environmental Law, Published by Chicago Environmental Attorney Dave Scriven-Young
of Peckar & Abramson, P.C. -- (312) 239-9722
Archive for November, 2009
  • IEPA Investigates Former Toastmaster Site in Algonquin

    Posted by on November 29, 2009
    According to a recent article in the Chicago Tribune and an Illinois EPA fact sheet, IEPA is investigating soil and groundwater contamination east of the former Toastmaster property at 401 Washington St. in Algonquin, bordered by the Prairie Trail bike path to the west and south, Towne Park to the north, and Route 31 to the east.  The property was historically used for the production of suc...
  • DNA Testing Shows Asian Carp Within 7 miles of Lake Michigan

    Posted by on November 28, 2009
    There are new fears that Asian carp are getting closer to the Great Lakes.  According to two recent articles in the Chicago Tribune, DNA testing found evidence of the Asian carp within 7 miles of Lake Michigan after apparently leaping an electrical barrier erected to prevent the carp from reaching the Great Lakes. Scientists found Asian carp DNA above an electric fish-barrier in the San...
  • EPA Declares That Chicagoland Met Another Air Quality Standard

    Posted by on November 25, 2009
    Today, U.S. EPA published a final rule in the Federal Register determining that the "Chicago-Gary-Lake County, Illinois-Indiana" areas have met the 1997 fine particle (PM2.5) National Ambient Air Quality Standard (NAAQS). As a result of this determination, "the requirements for these areas to submit an attainment demonstration and associated reasonably available control measures (RACM), a r...
  • University of Illinois Receives Grant From EPA to Study Carbon Sequestration

    Posted by on November 24, 2009
    According to an article from the Chicago Tribune, the U.S. EPA awarded the University of Illinois approximately $900,000 in grant funds to study the possible environmental impact of the underground sequestration of carbon dioxide. The theory of carbon sequestration is that carbon dioxide (a major greenhouse gas) can be captured at stationary sources, such as power plants, and injected...
  • Clean-Up To Begin at Manufactured-Gas Plant in Quincy

    Posted by on November 22, 2009
    According to an article from the Chicago Tribune, AmerenCIPS--a central Illinois utility company--will launch a $20 million cleanup of underground contaminants at a defunct gas-manufacturing plant in Quincy. Manufactured-gas plants were industrial facilities that produced gas from coal, oil and other feedstocks.  The gas was stored, and then piped to the surrounding area, where it was use...
  • IEPA Notifies Four Communities of Groundwater Contamination

    Posted by on November 20, 2009
    Today, the Illinois Environmental Protection Agency reported that it notified the Fox River Grove public drinking water supply, the Hennepin Public Water District, the Rockford public water supply, and the Six Oaks Mobile Home Park (located south of Pecatonica on Route 20) public drinking water supply that there were confirmed detections of groundwater contamination that pose threats of expo...
  • ComEd Beginning to Install Smart Meters

    Posted by on November 19, 2009
    According to ComEd's website and a recent article in the Chicago Tribune, ComEd is beginning to install smart meters this month on homes and businesses in several suburbs, including Bellwood, Berwyn, Broadview, Forest Park, Hillside, Maywood, Melrose Park, Oak Park and River Forest. This follows the news that Naperville received a grant to install smart meters in that city.  ComEd sees th...

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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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