News and Events Involving Environmental Law, Published by Chicago Environmental Attorney Dave Scriven-Young
of Peckar & Abramson, P.C. -- (312) 239-9722
Archive for July, 2010
  • Illinois EPA Announces Agreement with U.S. Steel to Install Air Pollution Control Equipment

    Posted by on July 22, 2010
    According to an Illinois Environmental Protection Agency press release, the Illinois EPA recently entered into a memorandum of agreement with U.S. Steel, the only integrated steel manufacturing facility in Illinois, to take steps to reduce air pollution emissions.  U.S. Steel is located in Granite City, IL. Specifically, "the agreement means that U. S. Steel will significantly boost their c...
  • Environmental Register for June 2010

    Posted by on July 20, 2010
    The Illinois Pollution Control Board has issued its Environmental Register publication for June 2010. The Environmental Register features a letter from Chairman Girard, a rulemaking update, a summary of actions of the Board, a summary of new cases, and the Board's calendar. Stay tuned to the Illinois Environmental Law Blog for more news and developments....
  • Five States Open Second Phase of Asian Carp Litigation

    Posted by on July 19, 2010
    When the U.S. Supreme Court ruled against the State of Michigan in its quest to stop Asian carp from migrating into Lake Michigan, many declared an end to litigation over the invasive species.  However, the State of Michigan (along with Wisconsin, Minnesota, Ohio, and Pennsylvania) today filed a second lawsuit--this time in federal district court in Illinois. In their Complaint for Injunc...
  • Wastewater Treatment Plant Operator Settles Alleged Environmental Violations

    Posted by on July 17, 2010
    The Illinois Pollution Control Board recently accepted the parties' settlement in the case of People v. Penrith, No. PCB 10-94, which concerned the defendant's wastewater treatment plant located on the southeast corner of the intersection of U.S. Highway 41 and W. Wadsworth Road, Wadsworth, Lake County, Illinois. The State alleged that the defendant violated the Illinois Environmental Protect...
  • EPA Orders Livestock Operation To Pay $40,000 Penalty For Alleged Water Pollution Violations

    Posted by on July 13, 2010
    I received a comment on the LinkedIn boards today about my last post--why did the dairy farm only get a $2,000 in the settlement of a State enforcement action approved by the Illinois Pollution Control Board?  My response was that everything depends on the facts of the case--what was the extent of the environmental harm, previous violations by the defendant, etc.  This theory was demonstr...
  • State Settles Enforcement Action Against Dairy Farm For Alleged Water Pollution Violations

    Posted by on July 12, 2010
    The Illinois Pollution Control Board recently accepted the parties' settlement of a State enforcement action in People v. Miller, Case No. PCB 10-43, which concerned a 1,300-acre dairy farm, consisting of two separate parcels: 765 East Rock Grove Road, Orangeville, Stephenson County, Illinois; and 1984 Hickory Grove Road, Dakota, Stephenson County, Illinois. The State alleged that the defend...
  • EPA Finds That Illinois Failed to Submit Plan Under Clean Air Act

    Posted by on July 11, 2010
    The U.S. Environmental Protection Agency recently published a final rule in the Federal Register finding that the State of Illinois failed to submit a State Implementation Plan ("SIP") to satisfy the attainment and maintenance interstate transport requirements of the Clean Air Act with respect to the 2006 24-hour National Ambient Air Quality Standards ("NAAQS") for fine particulate matter (...

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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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