The U.S. Supreme Court today denied Michigan’s request to take immediate action to stop Asian carp from reaching the Great Lakes. In a one-line order (go to page 3), the Supreme Court denied the State of Michigan’s motion for a preliminary injunction, siding with the State of Illinois, the federal government (essentially the U.S. Army Corps of Engineers), and the Metropolitan Water Reclamation District of Greater Chicago. While the Supreme Court did not issue an opinion explaining its decision, it’s fair to assume that the Court was persuaded by the brief filed by the Solicitor General on behalf of the United States. The federal government sided with Illinois and asserted that the federal government is already doing everything possible to protect the Great Lakes from Asian carp (a doubtful assertion at best).
Legally, the matter is by no means over. The Supreme Court did not rule on Michigan’s petition for a new decree under the old Chicago diversion case, Wisconsin v. Illinois, or on Michigan’s alternative request to open a new case. A decision on Michigan’s petition could come soon, or still be months away. Michigan and the other concerned Great Lakes states could also file a separate lawsuit in a lower federal court, and environmental groups could pursue relief against Illinois and the Metropolitan Water Reclamation District of Greater Chicago in state court.
But as a practical matter, any future legal decisions may come too late to protect the Great Lakes from Asian carp. Without a preliminary injunction ordering immediate action, the carp may continue to migrate towards the Great Lakes while the legal case is pending.
Michigan and the other Great Lakes states may still get their day in court, but it could be a day too late for Great Lakes fisheries.
Sadly, the best immediate hope right now is for a political solution. Michigan Attorney General Mike Cox, who has led the legal fight on behalf of the Great Lakes, has already publicly requested a meeting with President Obama. I’ve heard that Michigan Governor Jennifer Granholm and Wisconsin Governor Jim Doyle have now made a similar request. Meanwhile, Illinois’ senior senator, Dick Durbin, has publicly stated his desire for all of the parties to “meet in the halls of Congress and come up with a real solution.” I’m skeptical of any solution emerging from the “halls of Congress” (perhaps Senator Durbin can find solutions to global warming – not to mention the budget and health care - while he’s looking around the halls of Congress), but I hope Congress can find the will to do its job when it's needed most.
And we shouldn’t let President Obama off the hook either. He directs the Executive Branch, including the U.S. Army Corps of Engineers and the other relevant federal agencies (EPA, Fish & Wildlife Service, NOAA, USGS). If President Obama wants to establish his leadership on Great Lakes protection beyond spending money, now’s his chance.
Update: Dan Egan of the Milwaukee Journal Sentinel reports that DNA samples show that Asian carp are now in Lake Michigan
