News and Events Involving Environmental Law, Published by Chicago Environmental Attorney Dave Scriven-Young
of Peckar & Abramson, P.C. -- (312) 239-9722
Archive for September, 2010
  • Environmental Register for August 2010

    Posted by on September 27, 2010
    The Illinois Pollution Control Board has issued its Environmental Register publication for August 2010. The Environmental Register features a letter from Chairman Girard, which discusses five environmental bills that Governor Quinn recently signed into law.  The Environmental Register also contains an appellate court update, a rulemaking update, a summary of actions of the Board, a summa...
  • Illinois ENERGY STAR® Appliance Rebate Program–Friday, September 24th

    Posted by on September 23, 2010
    On Friday September 24th, Illinois residents can receive a 15% off instant discount at the point of sale, up to $250, on an ENERGY STAR qualified model for washers, dishwashers, freezers, or refrigerators.  This program is sponsored by the Illinois Department of Commerce and Economic Opportunity and the American Recovery and Reinvestment Act of 2009. Note that this is an appliance repla...
  • Selection to “14 Under 40” List in DePaul Magazine

    Posted by on September 20, 2010
    I would like to announce my selection to the "14 Under 40" list in the Fall 2010 publication of DePaul Magazine.  According to the magazine, "each year, we call on members of the community, including alumni, faculty, staff and friends, to nominate DePaul graduates who distinguish themselves.  We then choose 14 of them, with the goal of representing schools and colleges across the university...
  • IL Department of Public Health Recommends Well Testing for Areas in Kendall and McHenry Counties

    Posted by on September 15, 2010
    The Illinois Department of Public Health recently recommended that two communities test their wells for contamination. First, IDPH advised residents who obtain their drinking water from private wells in the Hollis Subdivision (Kendall County) area to test their water for possible groundwater contamination.  Routine testing of Illinois American Water Company - Hollis community water supply w...
  • Federal Appeals Court Upholds Dismissal of Lawsuit Seeking to Prevent Village’s Acquisition of Utility Assets

    Posted by on September 14, 2010
    The U.S. Court of Appeals for the Seventh Circuit recently issued an opinion in Rock Energy Cooperative v. Village of Rockton, No. 10-1106, which concerned a dispute over the ownership of assets used by natural gas and electric utilities. Rock Energy is a consumer-owned utility that provides gas and electricity to its members on a cost-of-service, nonprofit basis.  In 2004, Alliant Energy an...
  • Romeoville Oil Leak Update

    Posted by on September 12, 2010
    9/14/10 UPDATE: According to an article in the Chicago Tribune, the Illinois EPA has referred this matter to the Illinois Attorney General's office for a possible enforcement action. ----------------------------------------------------------------------------- 9/13/10 UPDATE: According to an article in the Chicago Tribune, the leak has been stopped: "Crews on Monday removed a 12-foot section ...
  • Asian Carp Czar Named by White House

    Posted by on September 9, 2010
    The federal Council on Environmental Quality recently announced the appointment of John Goss as the Asian Carp Director.  According to CEQ's press release, Goss "will serve as the principal advisor to CEQ Chair Nancy Sutley on Asian carp issues, and oversee the coordination of Federal, state, and local efforts to keep Asian carp from establishing in the Great Lakes ecosystems. . . . G...

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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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