News and Events Involving Environmental Law, Published by Chicago Environmental Attorney Dave Scriven-Young
of Peckar & Abramson, P.C. -- (312) 239-9722
Archive for January, 2010
  • IL Pollution Control Board Penalizes Company for Open Dumping

    Posted by on January 31, 2010
    On January 21, 2010, the Illinois Pollution Control Board found that Info Corner Materials, Inc. ("ICM") violated the Illinois Environmental Protection Act and ordered ICM to pay $3,000 in civil penalties. The penalty resulted from an administrative citation that was filed by the Illinois Environmental Protection Agency concerning ICM’s disposal facility located on Bachmann Drive, just nor...
  • President Obama Renews Call for Clean Energy and Climate Change Legislation

    Posted by on January 28, 2010
    After last night's State of the Union Address, there should be no doubt that President Obama is going to stay the course on his agenda.  He renewed his call for Congress to pass clean energy and climate change legislation: "Next, we need to encourage American innovation. Last year, we made the largest investment in basic research funding in history -– (applause) -- an investment that coul...
  • U.S. Senators Introduce Resolution Disapproving EPA’s Endangerment Finding on Greenhouse Gases

    Posted by on January 27, 2010
    Ever since the election of Senator-Elect Scott Brown in Massachusetts (and the loss of the Democratic supermajority in the Senate), people have been asking if climate change legislation will be passed by Congress anytime soon.  According to a recent column in the Chicago Tribune, even the chief executive of Exelon Corp. "admitted last week that his cherished cap-and-trade plan for cutti...
  • U.S. EPA Orders Dairy to Comply with Clean Water Act

    Posted by on January 26, 2010
    According to an agency press release, the U.S. Environmental Protection Agency issued an order under the Clean Water Act to Westridge Dairy LLC, 2114 Ames Road, Red Bud, Illinois.  Westridge is a "medium-sized concentrated animal feeding operation (CAFO) in the Kaskaskia River watershed in central Illinois with approximately 700 mature dairy cows." U.S. EPA ordered the dairy "to stop all...
  • U.S. EPA Proposes New Smog Standards

    Posted by on January 21, 2010
    On January 19, 2010, the U.S. Environmental Protection Agency published in the Federal Register a proposed rule that would set more stringent standards for ground-level ozone, more commonly known as smog.  U.S. EPA is proposing these new standards after reconsideration of limits set by the Bush administration in 2008. Specifically, "EPA proposes that the level of the 8-hour primary stan...
  • U.S. Supreme Court Denies Request to Close Locks on Same Day Asian Carp DNA Found in Lake Michigan

    Posted by on January 20, 2010
    On January 19, 2010, the U.S. Supreme Court entered a one-sentence order (page 3 of this list of orders) denying the State of Michigan's request for preliminary injunction that would have immediately closed locks and gates leading to Lake Michigan.  Michigan requested these actions to prevent Asian carp from getting into the lake. On the same day, the U.S. Army Corps of Engineers announced t...
  • Environmental Register for December 2009

    Posted by on January 19, 2010
    The Illinois Pollution Control Board has issued its Environmental Register publication for December 2009. The Environmental Register features a letter from Chairman Girard, an appellate court update, a rulemaking update, a summary of actions of the Board, a summary of new cases, and the Board's calendar.  The Environmental Register also contains "Restricted Status" and "Critical Review"...

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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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