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

    Posted by on February 28, 2010
    On February 4, 2010, the Illinois Pollution Control Board accepted the settlement of an administrative citation action filed by the Illinois Environmental Protection Agency against Blickhan Family Corporation, Inc. and Blick’s Construction Co. Inc. in Illinois Environmental Protection Agency v. The Blickhan Family Corporation, IPCB No. AC 09-43. The Illinois EPA alleged that the defen...
  • Court Finds Owner of Facility’s Equipment Liable in Cost-Recovery Case

    Posted by on February 27, 2010
    In United States v. Saporito, Case No. 07 C 3169, the United States District Court for the Northern District of Illinois recently ruled that the federal government could recover its environmental cleanup costs against the current owner of a facility's equipment. Beginning in the 1970s, Crescent Plating operated a facility on the northwest side of Chicago that plated steel and brass object...
  • U.S. EPA Announces Comprehensive Asian Carp Strategy

    Posted by on February 24, 2010
    Earlier this month, the U.S. Environmental Protection Agency published a draft "Asian Carp Control Strategy Framework." The main objectives of the Framework were to • Establish the need for participating agencies to act urgently to prevent Asian carp from becoming established in the Great Lakes. • Integrate and unify the future actions of participating agencies. • Transition from a s...
  • U.S. EPA Finalizes New Air Standards for Nitrogen Dioxide

    Posted by on February 23, 2010
    On February 9th, the U.S. Environmental Protection Agency published in the Federal Register a final rule setting new primary national ambient air quality standards for nitrogen dioxide.  Specifically, EPA is establishing a new 1-hour standard at a level of 100 ppb to supplement the existing annual standard.  EPA is also establishing requirements for a nitrogen dioxide monitoring network ...
  • IL Pollution Control Board Again Penalizes for Open Dumping

    Posted by on February 22, 2010
    On January 21, 2010, the Illinois Pollution Control Board found that the owner of a facility in Clay County, Illinois violated the Illinois Environmental Protection Act and ordered the owner to pay $3,000 in civil penalties, in Illinois Environmental Protection Agency v. Luttrell, IPCB No. AC 10-09.  This follows on the heels of a $3,000 penalty for a disposal facility in Sangamon County, I...
  • Climate Change Seminar at Chicago Bar Association

    Posted by on February 17, 2010
    On March 17, 2010, I will present a climate change seminar entitled "Greenhouse Gas Regulations: Advising Clients in an Uncertain Legal Environment".  I will present this seminar as part of the "Hot Topics in Environmental Law" program, which will take place from 3:00 pm to 6:00 pm at the Chicago Bar Association, 321 South Plymouth Court, Chicago, IL 60604. My seminar will address rece...
  • U.S. Representatives Introduce Bill to Prohibit Regulation of Greenhouse Gases Under Clean Air Act

    Posted by on February 9, 2010
    As recently reported on this blog, members of the U.S. Senate introduced a resolution disapproving U.S. EPA's endangerment finding that greenhouse gases pose a threat to human health and welfare.  On February 2nd, members of the U.S. House of Representatives introduced legislation that would prohibit U.S. EPA from regulating greenhouse gases under the Clean Air Act: "SECTION 1. GREENHOUSE GA...

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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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