News and Events Involving Environmental Law, Published by Chicago Environmental Attorney Dave Scriven-Young
of Peckar & Abramson, P.C. -- (312) 239-9722
Archive for March, 2010
  • Illinois EPA Refers Alleged Stormwater Dischargers to Attorney General for Enforcement

    Posted by on March 31, 2010
    The Illinois Environmental Protection Agency has asked the Illinois Attorney General's Office to file an enforcement action against the owners of an ethanol plant located at 23029 E. County Highway 6 in Canton, Fulton County, Illinois, and companies associated with an adjacent grain operations/storage site. According to the Illinois EPA, an inspection revealed "that both of the sites were ...
  • Six Weeks of Intensive Sampling Leads to Discovery of Zero Asian Carp

    Posted by on March 30, 2010
    On March 29th, the Asian Carp Regional Coordinating Committee gave an update on sampling in Chicago-area waterways to find out if Asian carp have eluded an electric barrier designed to block their path to Lake Michigan.  After six weeks of sampling, no Asian carp were discovered: "Over the last six weeks, field crews from the Illinois Department of Natural Resources (DNR), U.S. Fish and Wil...
  • Chicago Ranks Fifth in Number of Energy Star-Labeled Buildings

    Posted by on March 26, 2010
    According to the U.S. EPA, Chicago ranked fifth on a list of U.S. metropolitan areas with the largest number of energy-efficient buildings that earned EPA’s Energy Star in 2009.  Chicago now has 134 Energy Star-labeled buildings, up from 125 last year when it was sixth on the list.  Almost 60 million square feet of floor space in the Chicago area is in Energy Star-labeled buildings. ...
  • Settlement of State Enforcement Action Against Operator of CCDD Facility

    Posted by on March 25, 2010
    On March 18th, the Illinois Pollution Control Board accepted the settlement in People v. Western Sand & Gravel Co., No. PCB 10-022, which concerned the defendant's Clean Construction or Demolition Debris ("CCDD") Facility at the intersection of 178 and I-80 in La Salle County, Illinois. The State alleged that the defendant violated the Illinois Environmental Protection Act by failing t...
  • IL Department Of Public Health Tells Residents of Rockford Mobile Home Park To Test Their Water

    Posted by on March 24, 2010
    On March 23rd, the Illinois Department of Public Health warned residents who obtain their drinking water from private wells in the GEM Suburban Mobile Home Park (MHP) area in Rockford, Winnebago County, Illinois to test their water for possible groundwater contamination.  IDPH stated that "routine testing of the GEM Suburban Mobile Home Park community water supply wells by the Illinois Envir...
  • Penalty of $7,500 Against Operator of Open Dump Imposed by IL Pollution Control Board

    Posted by on March 23, 2010
    On March 18th, the Illinois Pollution Control Board imposed a penalty on an administrative citation filed in County of Ogle v. Haan, No. AC 10-16, which dealt with the Mt. Morris Estates Trailer Park in Ogle County, Illinois. The County alleged that the defendant, who operated the trailer park, violated the Illinois Environmental Protection Act by causing or allowing open dumping resulting in l...
  • U.S. Supreme Court Rejects Michigan’s Asian Carp Argument for a Second Time

    Posted by on March 22, 2010
    As reported previously on this blog, the State of Michigan renewed its request, last month, to the U.S. Supreme Court for a preliminary injunction that would have immediately closed Chicago-area locks to protect against Asian carp.  Today, the Supreme Court rejected that renewed motion in a one sentence order. This does not mean that the court battle over Asian carp is over--far from ...

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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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