News and Events Involving Environmental Law, Published by Chicago Environmental Attorney Dave Scriven-Young
of Peckar & Abramson, P.C. -- (312) 239-9722
Archive for June, 2011
  • State Enforcement Action for Contaminating Public Water Supplies with Arsenic Results in $12,000 Settlement

    Posted by on June 25, 2011
    The Illinois Pollution Control Board recently accepted the parties' stipulation and proposed settlement in People v. JR Investment Group, LLC, Case No. PCB 07-139, which concerned a public water supply for a mobile home park located in the Village of Goodfield, Woodford County, Illinois. (more…)...
  • U.S. Supreme Court’s Opinion in American Electric Power Co. v. Connecticut

    Posted by on June 24, 2011
    In American Electric Power Co. v. Connecticut, the U.S. Supreme Court dismissed federal common law public nuisance claims brought by the plaintiffs (several States, the City of New York, and three private land trusts) against the defendants (four private power companies and the federal Tennessee Valley Authority.) (more…)...
  • U.S. Supreme Court Dismisses Climate Change Nuisance Lawsuits

    Posted by on June 20, 2011
    Today, the U.S. Supreme Court issued an opinion in American Electric Power Co. v. Connecticut, in which the Court held that the climate change nuisance lawsuits should be dismissed: "The Clean Air Act and the Environmental Protection Agency action the Act authorizes, we hold, displaces the claims the plaintiffs seek to pursue." (more…)...
  • Environmental Register for May 2011

    Posted by on June 15, 2011
    The Illinois Pollution Control Board has issued its Environmental Register publication for May 2011.  The Environmental Register features a letter from Chairman Girard, which discusses progress that the Board made in a number of open rulemaking dockets.  The Environmental Register also contains a rulemaking update, a summary of actions of the Board, a summary of new cases, and the Board's ca...
  • USEPA Determines That St. Louis Metro Area Has Attained 1997 8-Hour National Ambient Air Quality Standard for Ozone

    Posted by on June 14, 2011
    On June 9, 2011, U.S. EPA published a notice in the Federal Register making a determination that the St. Louis (MO–IL) metropolitan nonattainment area has attained the 1997 8-hour National Ambient Air Quality Standard (NAAQS) for ozone. The Clean Air Act requires EPA to set NAAQS for wide-spread pollutants from numerous and diverse sources considered harmful to public health and the environm...
  • Proposed Consent Decree Calls for $92,210 Civil Penalty and $132,627 SEP for Clean Air Act Violations

    Posted by on June 13, 2011
    On June 10, 2011, the U.S. Justice Department gave notice in the Federal Register that a proposed Consent Decree in United States v. Allied Metal Co., Case No. 11 C 3228, was lodged with the U.S. District Court for the Northern District of Illinois. In a civil action filed simultaneously with the Consent Decree, the United States sought a civil penalty against the defendant for violations under th...
  • News Update

    Posted by on June 10, 2011
    Here is a summary of three news stories that recently appeared concerning Illinois environmental issues: (1) A report from the International Joint Commission, which advises the U.S. and Canadian governments on Great Lakes issues, shows that "artificially raising water levels in Lakes Huron and Michigan to compensate for drop-offs caused by human tinkering is technologically feasible but would...

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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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