Great Lakes on the Ground – new blog by Andy Buchsbaum of the National Wildlife Federation
Michigan lawmakers to join legal fight over Asian carp in the Supreme Court

Michigan files suit against Illinois in the Supreme Court over Asian carp

Michigan Attorney General Mike Cox has filed suit in the U.S. Supreme Court on behalf of the State of Michigan against the State of Illinois for allowing Asian carp to potentially invade the Great Lakes through the Chicago Canal and other managed waterways.  Technically, this is not a new lawsuit, but a petition for a new Supreme Court decree (basically an order) under the old Chicago diversion case, Wisconsin v. Illinois.  That case, which has gone on for nearly a century and primarily involves Chicago’s diversion of Lake Michigan water out of the Great Lakes basin, expressly allows the parties (including Michigan) to petition the Supreme Court for a new decree (see paragraph 7 of the 1967 decree, as amended in 1980). 

For background on the Asian carp invasion and the Chicago Canal (with a nice diagram map), see my previous posts and media coverage here and here.  As this may be the first ever interstate nuisance action over invasive species before the U.S. Supreme Court, a short background on the legal issues may be useful.

The State of Michigan is filing a petition for a Supplemental Decree declaring that the current condition of the Chicago Canal and other related waterways that link the Mississippi River with the Great Lakes, as maintained by State of Illinois (along with the Metropolitan Water Reclamation District of Greater Chicago and the US Army Corps of Engineers) are unlawful.  (Michigan’s petition/brief is available here and the joint filed appendix is here).  Michigan is asking the Supreme Court to declare:

“that to the extent the facilities created, operated, and maintained by [the State of Illinois and the Army Corps] in connection with the diversion now allow the introduction of harmful aquatic invasive species into Lake Michigan and other connected waters, they constitute a public nuisance.  Those facilities create a threat of irreparable injury to natural resources held in trust by the State of Michigan, as well as riparian and other rights of Michigan and its citizens.”

Michigan makes clear in its petition that it is not seeking to alter the quantity of water being diverted from Lake Michigan for Chicago’s public water supply, but rather “modification of the means created and maintained by [Illinois] and the [Army] Corps to accomplish the diversion.”

Michigan has also filed a motion for a preliminary injunction to (1) close some of the locks on the Chicago Canal and connecting channels, (2) operate electric barriers in the canal at full strength, and (3) monitor for Asian carp and eradicate any Asian carp found.  Several passages from Michigan’s motion for preliminary injunction explain perfectly what’s at issue in this litigation:

“The states and Canadian provinces bordering the Great Lakes, and everyone that uses the Great Lakes for recreation or commerce, face a dire threat to this unique and irreplaceable resource, the largest freshwater system in the world. It is well documented that silver carp and bighead carp – huge by freshwater standards, voracious and prolific – pose a real potential to wipe out native species of fish in any waterway that the carp, each a species of Asian carp, comes to inhabit. These fish, near the end of an unrelenting march up the Mississippi River from Mississippi and Arkansas – are literally at the threshold of Lake Michigan, swimming in the rivers and canals near Chicago.
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The urgent need for action cannot be overstated. Partial measures are no longer an option. The remaining obstacles between the carp and Lake Michigan are the navigational locks and other structures operated by the Corps and the [Metropolitan Water Reclamation District of Greater Chicago]. If [Illinois and the other defendants] continue the current operation of these structures, particularly the locks, Asian carp will pass through these structures, and inevitably enter the Great Lakes system. Further, there are additional potential pathways provided by the Des Plaines River flooding and the Grand and Little Calumet Rivers. Given the rapid advance of these fish up the Mississippi River, there is no reason to believe that this invasion is not imminent.

If the carp make it to Lake Michigan, the environmental and economic disaster to follow may take some time to develop, but is virtually certain.”

While the implications of this case are tremendous, the background legal issues involved are fairly well-settled.  Under the U.S. Constitution (Article III, Section 2, Clause 2), the U.S. Supreme Court has original jurisdiction to hear disputes between states.  The Supreme Court has exercised this jurisdiction in the ongoing case over the Chicago diversion, Wisconsin v. Illinois, to which Michigan is a party and the U.S. federal government is an intervenor.  Since Michigan is seeking new relief involving the waterways and canals that Illinois and the other defendants operate pursuant to the Wisconsin v. Illinois decree, Michigan is on very solid legal ground to bring this case directly to the U.S. Supreme Court.

The Supreme Court will be faced with a classic interstate nuisance dispute.  This is nothing new - the Supreme Court’s first forays into environmental law were to resolve interstate pollution disputes,  and before the development of modern statutory environmental law in the 1970’s, the federal government’s primary tool for addressing interstate environmental harms was adjudication of disputes between states.  The Supreme Court will make a fact-specific inquiry (aided by a special master) to balance the competing interests of Illinois in keeping the Chicago Canal open against the interests of Michigan (and other Great Lakes states that may join the action) in protecting the Great Lakes fisheries from invasive Asian carp.  I’ve prepared a background paper on interstate environmental nuisance cases before the U.S. Supreme Court with more details on prior Supreme Court cases and applicable law.

Based on Michigan’s brief (and the supporting info in the appendix), it seems that Michigan can clearly demonstrate that the potential harm from the Asian carp invading the Great Lakes far outweighs the costs and burdens of closing the canal locks.  While closing the canal locks will cost the shipping industry and its customers substantial money (tens of millions of dollars), letting the Asian carp in could cost Michigan and other states far greater sums (billions of dollars) in harm to the Great Lakes fisheries.  Michigan’s motion for a preliminary injunction also makes a compelling case, especially with regard to the “irreparable harm” from allowing the Asian carp to enter the Great Lakes while the litigation is pending.

I know that Michigan’s Attorney General, Mike Cox, is currently running for the Republican nomination in the 2010 election to decide Michigan’s next governor.  Mike Cox is no political novice, and it would be simple to dismiss this lawsuit as a political move to gain support from Michigan’s many fisherman and boaters who are terrified of Asian carp invading the Great Lakes.  But Mike Cox has a strong record of legal action to protect the Great Lakes from invasive species.  And more importantly, the petition and other filings demonstrate that the Attorney General has a through, well-researched, and persuasive legal argument.  Mike Cox and his staff are doing the right thing, in the right way, at the right time.  While some politicians are sending letters, pointing fingers, or doing nothing at all, Mike Cox should be commended for taking reasoned, decisive legal action to protect the Great Lakes. 

For more info, see additional coverage from John Flesher of the Associated Press.