News and Events Involving Environmental Law, Published by Chicago Environmental Attorney Dave Scriven-Young
of Peckar & Abramson, P.C. -- (312) 239-9722

Reminder: 6/1/12 National Spring Conference on the Environment

I encourage you to register for the National Spring Conference on the Environment, titled “Reframing the Conversation: Examining the Tension Between Environmental Regulation, Job Growth and the Economy.”  This event is will take place this Friday, June 1st at the University of Maryland Francis King Carey School of Law in Baltimore.  The event is organized by the American Bar Association’s Section of Environment, Energy, and Resources.

Over 40 years ago, President Richard M. Nixon joined with Congress to transform environmental protection in this Nation. Through these efforts, the 1970s saw the creation of such pivotal regulatory schemes as those still implemented under the National Environmental Policy Act, the Clean Air Act, the Clean Water Act, the Endangered Species Act—as well as a host of other meaningful environmental protection initiatives, including creation of the United States Environmental Protection Agency. Notably, environmental protection was not then perceived to be “owned” by one political party or the other. Nor did aggressive “political” debates on environmental issues influence an apparent consensus regarding the importance of the core mission: protection of the people of our Nation and its precious and limited resources. Yet today, some forty years later, it seems fair to say that President Nixon and Congress did not then fully anticipate how their actions would ultimately yield the over-arching regulatory systems that now affect our nation at every level.

This 40th National Spring Conference on the Environment will reframe the conversation and address the current debate over the economic impact of environmental regulation in the United States. Even if true, of what relevance is it now that our current state of affairs was not anticipated by its creators? Environmental knowledge and knowledge of longstanding environmental issues and problems has advanced greatly since the 1970’s—as have, in likely equally unanticipated ways, economic issues, markets and regulatory mechanisms. What follows? As a Nation, for example, have we begun now to “trade off’ our commitment to environmental protection to facilitate economic recovery and job growth? What should our environmental protection mission be today? What should be our economic goals? Are we, for example, allowing decades of what some might view as “environmental regulatory creep” to diminish the Nation’s economic competitiveness and destroy our chances at job growth?

Featuring prominent federal, state, NGO and private sector experts at the center of this very real debate now under way in our country in a key Presidential year, this day-long conference will provide a wide-ranging discussion about the policy and reach of environmental regulation as this Nation tries to recover from one of the most devastating economic crises it has ever faced. The conference will examine the legal ramifications of restructuring the environmental regulatory development process In light of current “hot-topic’ water, air and natural gas issues.

A keynote presentation from USEPA’s General Counsel and an opening friendly “debate” between a former USEPA official and a current Administration official will prove to be uniquely informative on some of the most critical issues of our time. The Senior Energy Counsel, Committee on Energy and Commerce, U.S. House of Representatives, has been invited to help frame a concluding facilitated discussion in which participants will help formulate forward-looking policy proposals on these crucial issues.

Registration is still open.  Click here for more information, including conference registration, materials, and brochure.

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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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    2 weeks ago  ·