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Illinois Appellate Court Denies Siting of Kankakee Landfill

On December 4, 2009, the Appellate Court of Illinois, Third District, issued an opinion in the case of County of Kankakee v. Illinois Pollution Control Board, No. 3-04-0271.  At issue in this case was an application by Town & Country Utilities, Inc. and Town & Country and Kankakee Regional Landfill, LLC to site a landfill within the City of Kankakee, Illinois.  The proposed landfill was located 1 & 3/4 miles away from an existing landfill run by Waste Management of Illinois, Inc.

Under Illinois law (415 ILCS 5/39.2), a county board or governing body of a municipality has authority to approve or disapprove a request for local siting approval for landfills.  Local siting approval shall be granted only if the proposed facility meets the following criteria:
(i) the facility is necessary to accommodate the waste needs of the area it is intended to serve;
(ii) the facility is so designed, located and proposed to be operated that the public health, safety and welfare will be protected;
(iii) the facility is located so as to minimize incompatibility with the character of the surrounding area and to minimize the effect on the value of the surrounding property;
(iv) for a facility that is a sanitary landfill or waste disposal site, the facility is located outside the boundary of the 100‑year floodplain, or (under certain circumstances) if the site is flood‑proofed;
(v) the plan of operations for the facility is designed to minimize the danger to the surrounding area from fire, spills, or other operational accidents;
(vi) the traffic patterns to or from the facility are so designed as to minimize the impact on existing traffic flows;
(vii) if the facility will be treating, storing or disposing of hazardous waste, an emergency response plan exists for the facility which includes notification, containment and evacuation procedures to be used in case of an accidental release;
(viii) if the facility is to be located in a county where the county board has adopted a solid waste management plan consistent with the planning requirements of the Local Solid Waste Disposal Act or the Solid Waste Planning and Recycling Act, the facility is consistent with that plan; and
(ix) if the facility will be located within a regulated recharge area, any applicable requirements specified by the Pollution Control Board for such areas have been met.

The County of Kankakee case dealt primarily with the eighth criterion (whether the facility is consistent with the county’s solid waste management plan).  The Kankakee County Solid Waste Management Plan had been amended to prohibit landfills within Kankakee County, except for “an expansion of the existing landfill on the real property that is contiguous to the existing landfill” run by Waste Management.

The issue was whether the proposed landfill was “contiguous to the existing landfill”, even though the proposed landfill was located 1 & 3/4 miles away from the existing landfill.  The Kankakee City Council and the Illinois Pollution Control Board ruled that the proposed landfill was, in fact, contiguous.  However, the Appellate Court of Illinois disagreed and held that the proposed landfill was not contiguous.  The Court found that the “proposed landfill was the immediate object of the County’s decision to preclude ‘non-contiguous landfilling.  As such, the County intended its use of the word ‘contiguous’ to prevent what Applicants were proposing–a new landfill located 1 3/4 miles away from Waste Management’s existing landfill.”  Therefore, the Court held that the Pollution Control Board “erred in finding that the proposed landfill was contiguous to the existing landfill for purposes of the County’s solid waste management plan.”  As a result, the Court decided that the request for local siting approval must be denied.

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  ·