Last week, a federal court of appeals panel upheld a district court order denying the request of Michigan, Minnesota, Ohio, Pennsylvania, and Wisconsin to issue a preliminary injunction compelling the United States Army Corps of Engineers and Chicago’s Municipal Water Reclamation District to close the locks on the Chicago Area Waterway System to prevent the spread of Asian carp into Lake Michigan (for background on the district court ruling, see this prior post). While the appellate court ultimately affirmed the district court’s denial of immediate relief, the decision is as good for the states and Great Lakes advocates as could be expected, and leaves the door pretty wide open for future legal action.
The bad news is pretty obvious. Judge Diane Wood, writing for a unanimous three judge appellate panel of the Seventh Circuit, upheld District Judge Robert Dow’s denial of the states’ motion for preliminary injunctive relief, most notably closing the locks on the Chicago canal to prevent the spread of Asian carp from the Mississippi River system into the Great Lakes. However, the silver linings are numerous, and may ultimately be more important in the ongoing fight to protect the Great Lakes from invasive species. The appeals court decision resolved numerous legal issues in favor of the states and sends a strong warning to the federal government about the threat that Asian carp pose to the health of the Great Lakes.
As NRDC attorney Thom Cmar wrote in a guest post last year, the states had some big legal obstacles to overcome in their fight to protect the Great Lakes from Asian carp. While they lost the first battle for a preliminary injunction, the appeals court decision resolves many of these legal obstacles in the states’ favor. First, the court held that the states could seek relief pursuant to the federal common law of nuisance to address the threat posed by Asian carp. Further, the court held that the U.S. Army Corps of Engineers could not claim sovereign immunity from this suit, since sovereign immunity was waived, for purposes of these claims for injunctive relief, under section 702 of the Administrative Procedure Act. (The court left open the more fundamental question of whether a state can bring a common law public nuisance claim against the federal government, as this case could be decided on other grounds). And the court rejected the federal government’s defense that the federal common law claims were “displaced” by the various federal statutes that address invasive species, concluding that “Congress has not passed any substantive statute that speaks directly to the interstate nuisance” of invasive Asian carp. The state attorney general offices that have led the fight deserve recognition for these legal victories, which may pay dividends as the battles against invasive species go on. (The Great Lakes attorney generals are now enlisting the help of other states in this effort, pressuring the federal government to restore the natural hydrological separation between the Great Lakes and Mississippi River basins.)
Although the court cleared away the legal obstacles to the states’ lawsuit and held that Congress has failed to address the issue adequately to displace the states’ common law claims, the court nonetheless upheld the denial of the requested preliminary injunction. But it was still far more favorable to the states than the district court. Unlike the district court, which blew off the states’ concerns about Asian carp entering the Great Lakes and establishing a breeding population, the court of appeals viewed the evidence (which has become more compelling since the district court’s order last year) very differently, concluding that “the plaintiffs presented enough evidence at this preliminary stage of the case to establish a good or perhaps even a substantial likelihood of harm – that is, a non-trivial chance that the carp will invade Lake Michigan in numbers great enough to constitute a public nuisance. If the invasion comes to pass, there is little doubt that the harm to the plaintiff states would be irreparable.”
Despite this evidence, the court of appeals ultimately relied on the ongoing coordinated effort led by the federal government to address Asian carp as the best possible solution to the crisis. Rather than giving the states’ an immediate injunction to close the locks, the court wants to give the federal government a reasonable chance to address the problem cooperatively. But the court did not give the federal government a free pass – rather, it left open the possibility that new information regarding the Asian carp threat and lack of action by the federal government could invite future court action. The concluding paragraph of the court’s 57-page opinion sums it up nicely:
We take very seriously the threat posed by the invasive species of carp that have come to dominate parts of the Mississippi River basin and now stand at the border of one of the most precious freshwater ecosystems in the world. Any threat to the irreplaceable natural resources on which we all depend demands the most diligent attention of government. As the case proceeds, the district judge should bear in mind that the risk of harm here depends upon both the probability of the harm and the magnitude of the problem that would result. In the end, however, the question whether the federal courts can offer meaningful equitable relief – either preliminary or permanent – to help abate a public nuisance in the face of agency action is factual in nature. It depends on the actual measures that the agencies have implemented already and those that they have committed to put in place going forward. Our ruling today is tied to our understanding of the current state of play. We recognize that the facts on the ground (or in the water) could change. The agencies currently working hard to solve the carp problem might find themselves unable to continue, for budgetary reasons, because of policy changes in Washington, D.C., or for some other reason. If that happens, it is possible that the balance of equities would shift. Similarly, new evidence might come to light which would require more drastic action, up to and including closing locks on Lake Michigan for a period of time. If either situation comes to pass, then the district court would have the authority to revisit the question whether an exercise of its equitable powers is warranted, taking into account the principles we have discussed in this opinion. As things stand now, however, preliminary relief is not appropriate. The district court’s judgment is affirmed.