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

Michigan Requests That Supreme Court Reconsider Asian Carp Ruling

As reported on this blog, the U.S. Supreme Court recently denied the State of Michigan’s request for a preliminary injunction that would have immediately closed Chicago-area locks to protect against Asian carp.  According to a recent press release from the office of Michigan Attorney General Mike Cox, a motion to reconsider that decision was filed on Michigan’s behalf:

“Cox pointed to eDNA tests showing evidence of Asian carp in Lake Michigan that was available three days before the Court made its decision but not provided by the U.S. Army Corps of Engineers until afterward.  In the aftermath of this revelation, Michigan’s motion questions the lack of action by Illinois and federal authorities to increase efforts against the spread of Asian carp despite claims they made in earlier legal filings that they would ‘re-visit the conclusions related to lock closure’ in the event new information became available.

“Additionally, Michigan’s motion includes an economic study on the effects of the closure of the locks necessary to separate the Mississippi River basin from the Great Lakes basin.  The study, conducted by a Wayne State University transportation expert, concludes Illinois’ claim that ‘even a temporary closure of the locks will devastate the local economy’ cannot be supported.  For example:

· Statistics previously submitted to the Court by Illinois and the federal government on the potential economic costs of lock closure are ‘seriously exaggerated.’  The report says annual costs would amount to less than $70 million, much lower than the $190 million claim made by Illinois and the federal government.  This stands in contrast to the billions in economic activity and thousands of jobs at risk if Asian carp enter the Great Lakes.

· While noting the canal system would largely remain open to barge traffic after a lock closure, cargo though the O’Brien Lock is already down 45 percent in recent years, showing its rapidly declining significance in Chicago’s $521 billion economy.

· Truck traffic would increase by only 1/10 of 1 percent as a result of lock closure, while jobs would likely increase overall as a result of the new modes of transposition needed, like trucking.”

Stay tuned to the Illinois Environmental Law Blog for more news and developments.





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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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    1 week ago  ·  

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