News and Events Involving Environmental Law, Published by Chicago Environmental Attorney Dave Scriven-Young
of Peckar & Abramson, P.C. -- (312) 239-9722
Archive for October, 2011
  • Governor Quinn Makes Two Appointments to Illinois Pollution Control Board

    Posted by on October 26, 2011
    On October 24, 2011, Governor Pat Quinn announced in a press release that he made two appointments to the Illinois Pollution Control Board: "Governor Quinn named Tom Holbrook to head the Pollution Control Board (PCB). Holbrook previously served as a member of the Illinois House of Representatives since 1995, where he represented the state’s 113th District and focused on environmental and reg...
  • Governor Quinn Appoints New Interim Director of Illinois EPA

    Posted by on October 24, 2011
    On October 24, 2011, Governor Pat Quinn appointed John Kim as the Interim Director of the Illinois Environmental Protection Agency.  According to IEPA's press release: "John Kim has served as chief legal counsel and ethics officer at the Illinois Environmental Protection Agency (EPA) since 2009. Kim has worked to protect Illinois’ environment since 1988, previously serving as acting general...
  • Environmental Register for September 2011

    Posted by on October 23, 2011
    The Illinois Pollution Control Board has issued its Environmental Register for September 2011. The Environmental Register features a letter from Chairman Girard, which discusses the appointment of attorney Jennifer Burke to the Board, and the departure of Board Member Gary Blankenship. The Environmental Register also contains a rulemaking update, a summary of actions of the Board, a summary o...
  • U.S. EPA Extends SPCC Compliance Date for Farmers

    Posted by on October 20, 2011
    On October 18, 2011, the U.S. Environmental Protection Agency published in the Federal Register a rule extending the compliance date for the Spill Prevention, Control, and Countermeasure (SPCC) Rule for owners and operators of farms. The goal of the SPCC program is to prevent oil spills into waters of the United States and adjoining shorelines. A key element of this program calls for farmers a...
  • You’re Invited: 10/21/11 CBA YLS Environmental Law Meeting with Clean Water Act Speaker

    Posted by on October 18, 2011
    As Co-Chair of the Environmental Law Committee of the Chicago Bar Association Young Lawyers Section, I invite you to our next committee meeting.  The meeting will take place on Friday, October 21, 2011 at 12:15 pm at the Chicago Bar Association, 321 S. Plymouth Court in Chicago. We are beginning our “View from the Trenches” series, in which speakers will cover each of the environmental...
  • Federal Appeals Court Affirms Summary Judgment in Favor of Purchaser of Property Based on Inaccurate Environmental Representations and Warranties

    Posted by on October 10, 2011
    In Nature Conservancy v. Wilder Corp., No. 09-2988, the U.S. Court of Appeals for the Seventh Circuit in Chicago recently affirmed the trial court's grant of summary judgment in favor of the purchaser of land contaminated by the prior landowner.  This case concerned farmland purchased by The Nature Conservancy from Wilder for $16,350,000. The sales contract required Wilder to remove from the...
  • Recap of CBA YLS Adopt-a-Beach Event

    Posted by on October 5, 2011
    On Saturday, October 1, 2011, I participated with a group of folks from the Environmental Law Committee of the Chicago Bar Association Young Lawyers Division in an Adopt-a-Beach event at Chicago's Oak Street Beach.  Adopt-a-Beach is a program run by Alliance for the Great Lakes, which is the oldest independent citizen's organization devoted 100 percent to the Great Lakes. (more…)...

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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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