This week, Michigan Attorney General Mike Cox and numerous environmental groups have made public their respective intentions to pursue legal action to stop the imminent invasion of Asian carp into the Great Lakes via the Chicago Canal. As detailed in my previous post, the terribly invasive Asian carp have come up the Mississippi River and into the Chicago Sanitary and Ship Canal that provides an artificial link to Lake Michigan. DNA testing shows that invasive carp have likely breached the electric barrier installed by the US Army Corps of Engineers. In a desperate attempt to prevent further invasion, government officials have dumped thousands of gallons of fish poison into the Chicago canal to kill Asian carp (and any other fish) while the electric barrier is shut down for maintenance.
Most fisheries experts believe that even if some Asian carp have breached the electric barrier, decisive action to prevent further carp invasion could make the difference for the future of the Great Lakes fisheries. It’s clear that the Army Corps cannot provide adequate protection through an electric barrier, and poisoning the waters of the Chicago Canal can hardly be considered an ideal solution.
At this point, the best short term option is to shut the Chicago Canal locks (see map in previous post) to provide a hard physical barrier against the carp’s migration. Long term, it’s time to close down the Chicago Canal and restore the natural separation between the Mississippi River basin and the Great Lakes. This won’t happen without a fight, and that fight may well take place in court if Attorney General Cox and environmental groups go forward with legal action.
Michigan Attorney General Cox sent a letter earlier this week to the U.S. Army Corps of Engineers, the State of Illinois, and the Metropolitan Water Reclamation District of Greater Chicago demanding that they take action, potentially including the closing of the locks. In the letter, Cox indicated that he is prepared to take whatever legal action is necessary to protect the Great Lakes. Attorney General Cox was urged to take legal action by Governor Granholm and environmental organizations. (Attorney General Cox also sent Governor Granholm a response letter asking for information on the environmental and economic impact of the Chicago Canal and its potential closure.) Henry Henderson, Director of the Natural Resources Defense Council’s Midwest Program in Chicago (and a former Commissioner of the Environment for the City of Chicago) has detailed the government’s failures to address this problem, the need to immediately close the locks and eventually close the Chicago Canal, and options for legal action.
Attorney General Cox and environmental groups have several legal options and claims. First, because the Chicago Canal is operated pursuant to an ongoing U.S. Supreme Court decree regarding the Chicago water diversion (the historic Wisconsin v. Illinois cases), any of the parties to the historic litigation (including the State of Michigan) can petition the Supreme Court for relief to protect the Great Lakes from Illinois’ operation of the canal. Second, states and environmental groups could bring an action for public nuisance (for more on public nuisance, see this post on a recent case from the Second Circuit involving climate change pollution). Finally, if the invasive carp would harm threatened and endangered species in the Great Lakes, the hammer of an Endangered Species Act lawsuit is a potential option.
Regardless of what legal options are pursued, it’s clear that this issue will only be solved through aggressive legal action. The government agencies that were supposed to be protecting the Great Lakes (notably the Army Corps of Engineers, the US EPA, and the state of Illinois) have shown a lack of will and/or lack of ability to do what needs to be done. Meanwhile, as detailed by Gary Wilson at the Great Lakes Town Hall website, Congressional leaders are only offering symbolic gestures and no real action or regulatory solutions. Hopefully, legal action will lead to: (1) closing the locks immediately; (2) closing the Chicago Canal and restoring the natural separation of the Great Lakes from the Mississippi River system; and (3) once this current crisis is under control, a detailed look at how and why our government agencies have once again failed to protect our Great Lakes from invasive species.
Update: The Detroit Free Press reports that Attorney General Cox is preparing to file suit, possibly in the U.S. Supreme Court pursuant to Wisconsin v. Illinois (the Chicago diversion case)
