Great Lakes Law

Federal appeals court denies states’ request to order immediate measures to stop spread of Asian carp, but leaves open the possibility of future court action if the federal government doesn’t address the crisis

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.

International Joint Commission releases Report on Great Lakes Water Quality, announces next Great Lakes Biennial Meeting at Wayne State University

At a public event yesterday at Wayne State University, the International Joint Commission released its 15th Biennial Report on Great Lakes Water Quality. In its report, the IJC detailed 32 recommendations for action at the federal, state, provincial and local levels of government. (The full report and executive summary are available online.) Most notably, the recommendations focus on the need for the U.S. and Canada to approve a revised Great Lakes Water Quality Agreement to protect drinking water and human health from threats including inadequate wastewater treatment, agricultural run-off, industrial livestock operations, and pharmaceuticals. The report also recommends binational governance improvements to provide a rapid response to stop the spread of invasive species and basin-wide consistency in fish consumption advisories. The release of the report is just part of the ongoing public process under the Great Lakes Water Quality Agreement. The process culminates with the Great Lakes Biennial Meeting, which will be held October 12-14 at Wayne State University in Detroit.

Update: More IJC news – President Obama announced that he intends to nominate the final two US members of the IJC: (1) Dereth Glance, currently the Executive Program Director for Citizens Campaign for the Environment, a non-profit citizens environmental and public health advocacy organization in New York and Connecticut; and (2) Rich Moy, a Senior Fellow at the Center of Natural Resources and Environmental Policy at the University of Montana and former Water Management Bureau Chief for the Montana Department of Natural Resources and Conservation. See the White House announcement for more info. 

Another setback in the legal fight to keep Asian carp out of the Great Lakes

Late last week, in a 61-page opinion, U.S. District Judge Robert Dow denied 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.

The states’ complaint alleged that U.S. Army Corps of Engineers and Metropolitan Water Reclamation District of Greater Chicago have created a public nuisance by allowing Asian carp to threaten the waters and fisheries of the Great Lakes, a public resource.  The complaint further requested that the court review the actions of the Corps of Engineers, a federal agency, pursuant to the Administrative Procedure Act. (For more background on the states’ complaint, see this prior post.)

The states further motioned the court for a preliminary injunction to make the federal and local agencies protect the Great Lakes with “the best available methods to block the passage of, capture or kill bighead and silver carp.” NRDC attorney Thom Cmar detailed the key issues and arguments regarding the request for temporary closure of the locks in his prior guest post. (And see also the short commentary and response following Thom’s post by David L. Rieser of McGuireWoods LLP, who represents The Coalition to Save Our Waterways, which as an intervenor in the litigation opposed the States’ request for a preliminary injunction.)

Thom Cmar of NRDC has more analysis of the judge’s decision to keep the locks open and further discusses the need for a long term solution for the Chicago Area Waterway System. As Thom points out, the federal government’s response so far leaves much to be desired:

Judge Dow is correct that there are federal and state agencies working on this… most notably the Army Corps of Engineers.  The problem is that the Army Corps is working on this far too slowly, and in the wrong way.  Rather than lasering in on bold, effective action to prevent the Asian carp from establishing a population in Lake Michigan, the Corps is conducting a study that they think will take over 5 years and cost over $25 million – and even then, they have not committed to deciding on an option that will fully prevent Asian carp from moving through the CAWS, but only one that will “reduce the risk” of carp getting into the Lake.  That’s far from an adequate response, and if the White House or Conges doesn’t step in and provide the Corps with some adult supervision, the Asian carp saga could end up back in court – this time on a legal issue that the Corps is less likely to win.

Judge Dow’s denial of the motion for a preliminary injunction is a major setback in the states’ fight to keep Asian carp out of the Great Lakes. While not a final ruling on the case, it’s clear from the judge’s opinion that the states are not likely to succeed on the merits with the scientific evidence currently available before his court. As Nick Schroeck of the Great Lakes Environmental Law Center wrote in a guest column for the Great Lakes Town Hall:

[T]he Court analyzed the science behind, and legal admissibility of, environmental DNA evidence. The Court was not convinced that eDNA could determine exactly where the fish are, or were, and how many fish might be present in a particular sample area. The eDNA discussion shows the difficulty of litigating a common law public nuisance claim in the “CSI” era. The Court was not convinced that eDNA evidence and the recovery of one or two actual carp (one during the rotenone poisoning last December and one more recently in Lake Calumet), demonstrated an imminent threat to Lake Michigan. This reasoning does beg the question of how many carp are sufficient to meet the threshold. Setting aside the difficulty of actually netting the fish, if ten or twenty Asian carp had been found in the canal over the past few months would that be enough?

Nick further writes about the value of the states’ litigation, even if they don’t succeed before Judge Dow, and puts this litigation into a broader context of protecting the Great Lakes from invasive species:

This fight, however, is worth having. And to the extent that Plaintiffs can increase the federal and state response to the crisis and expedite the completion of the hydrological separation study (which is the real solution to Asian carp and the next invasive species, whatever it may be) this case continues to have importance. For the rest of us who care about the Great Lakes, we must continue to press for action from the White House and Congress. As the legal battle over injunctions and common law public nuisance demonstrates, the current law is, at best, inadequate and we need comprehensive federal legislation attacking aquatic invasive species from all vectors. That coordinated assault on invasive species includes, in my opinion, a frank discussion about the future of all the artificial, manmade, connections to the Great Lakes.

Federal district court considers Asian carp case and arguments for temporary closure of Chicago canal locks - guest post by Thom Cmar

As this is being posted, a federal district court in Chicago is hearing arguments by Michigan and four other Great Lakes states to compel the temporary closure of Chicago canal locks to stop the spread of invasive Asian carp. Michigan and the other states (Wisconsin, Minnesota, Ohio, and Pennsylvania) argue that the U.S. Army Corps of Engineers and Metropolitan Water Reclamation District of Greater Chicago have created a public nuisance by allowing Asian carp to threaten the waters and fisheries of the Great Lakes. The requested injunction would compel “the best available methods to block the passage of, capture or kill bighead and silver carp” – including the closure of connecting navigation locks (except in emergency situations). For a quick background on the case with more on the complaint, motion for preliminary injunction, and supporting brief, see this prior post. Thom Cmar, an attorney with the Natural Resources Defense Council’s Midwest office in Chicago, has been closely following the case and is at the hearing today. Thom is a familiar guest contributor to Great Lakes Law (see his prior post on a legal win to stop invasive species in New York), and offers the following superb analysis of the legal issues in the case.

Today I am attending the oral argument in State of Michigan, et al. v. U.S. Army Corps of Engineers, et al., Case No. 1:10-cv-04457 (N.D. Ill.), better known as the Asian carp litigation. The oral argument is likely the final court hearing in a series of hearings held by District Judge Robert M. Dow to allow a full airing of the legal and factual issues relevant to the motion filed by the Great Lakes States (Michigan, Wisconsin, Minnesota, Ohio, and Pennsylvania) for a preliminary injunction against the Army Corps and the Metropolitan Water Reclamation District of Greater Chicago (MWRD) seeking short-term measures, such as a temporary closure of the navigational locks connecting the Chicago Area Waterway System (CAWS) to Lake Michigan, to head off the imminent threat of an Asian carp invasion. As their ultimate remedy in the case, the States seek an order compelling expedited review of permanently separating the Great Lakes and Mississippi River, to prevent invasive species from using the CAWS as a highway to travel in both directions. Last month, the parties presented several days of live testimony from a number of witnesses, including Professor David Lodge of Notre Dame University testifying on the States’ behalf, and a number of federal officials testifying on behalf of the defendants. NRDC is not a party to the lawsuit, for a variety of reasons, but I am attending today’s oral argument as a highly interested observer.

For those of you who haven’t been following this case as closely as I have, the important thing to recognize is – much like the Great Lakes States’ similar filing which was rejected by the U.S. Supreme Court – there are a number of reasons why the district court could choose not to rule in the States’ favor that have nothing to do with whether the Asian carp invasion is an imminent threat that could cause significant ecological and economic harm to the Great Lakes region. If the States do not succeed in their motion for a preliminary injunction, it will likely be due to one or more of the following reasons:

1. Sovereign Immunity – The Army Corps claims that the States’ common law nuisance claims may not be brought against the Federal Government under the doctrine of sovereign immunity. According to the Corps, the States’ nuisance claims are tort claims that do not fit within the exceptions created by the Federal Tort Claims Act, 28 U.S.C. § 2671, and therefore the Federal Government has not consented to be sued on, and is immune to, such claims. The States argue that the Administrative Procedure Act (APA), 5 U.S.C. § 702, expressly waives sovereign immunity for all actions seeking equitable relief from government agencies, including common law nuisance actions. In their favor, the States’ cite a line of precedent holding that § 702 waives sovereign immunity for “non-statutory” cases challenging agency action as unconstitutional or ultra vires (i.e., going beyond the scope of the agency’s authority). The Corps’ response to this argument is that the States’ case does not allege unconstitutional or ultra vires agency action, and therefore that the § 702 waiver of sovereign immunity does not apply. This is a fascinating jurisdictional issue that may be a question of first impression.

2. Displacement of Federal Common Law – Even if the court agrees with the States that their nuisance claims are not barred by the doctrine of sovereign immunity, the States must further persuade the court that their nuisance claims are not displaced under federal law by congressional action. The Army Corps points to a series of congressional authorizations that require the Corps to promote navigation on the CAWS, to maintain water levels to certain specifications, and also to construct, maintain, and ensure the efficacy of the electric barrier system designed to prevent Asian carp from migrating through the CAWS into Lake Michigan. The States’ response is that in the absence of a specific federal statute covering a plaintiff’s claims and providing a remedy, the common law is not displaced – and that none of the statutory authorizations cited by the Corps authorizes the creation of a public nuisance.

3. Limited Scope of Judicial Review under APA – In addition to their common law nuisance claims, the States also allege claims under the APA. In response to these claims, the Corps makes a seemingly bizarre argument that there is “no law to apply” to allow for judicial review of the Corps’ actions, and thus that the States’ APA claims are legally invalid. The Corps’ argument, atmospherically at least, seems inconsistent with its argument against the States’ common law nuisance claims: namely, that there is so much law to apply (in the form of congressional authorizations and mandates) that the common law is displaced. The Corps appears to be trying to have it both ways here, arguing on the one hand that congressional authorizations displace common law, but on the other hand that its actions pursuant to those congressional authorizations are not judicially reviewable.

Nevertheless, the Corps does have strong defenses to the States’ APA claims. As every law student knows, courts review APA challenges to agency action under a deferential standard of review. Agency actions will only be overturned by courts if they are “arbitrary, capricious, or contrary to law” – in other words, if the agency is acting in a way that either makes no sense or is blatantly illegal. This standard of review presents a difficult barrier for the States to overcome, especially at the preliminary injunction stage.

4. Federal Courts’ Institutional Reluctance to Impose Mandatory Injunctions – Another critical issue in this case is that the States, in their motion for a preliminary injunction, have asked the district court to issue a detailed, proscriptive injunction that requires the Army Corps and other agencies to take additional actions to stop the Asian carp from invading Lake Michigan that they would not otherwise take on their own. Although many of the actions sought by the States would more vigorously protect the Lake from invasion than what the agencies are doing when left to their own devices, federal courts are typically reluctant to grant such broad injunctions that arguably require the court to second-guess agency decision making.

Each of the above legal considerations has little to do with whether there is an actual, live threat of imminent harm to the Great Lakes from an Asian carp invasion of Lake Michigan. Yet some combination of the above arguments could easily derail the States’ case against the Army Corps and MWRD. The important thing to remember is that, regardless of what ultimately comes out of Judge Dow’s courtroom, both the long-term integrity of both the Great Lakes and Mississippi River basins requires development of a permanent solution to invasive species transfers through the CAWS that deals with all of the complicated water and transportation issues implicated by making changes to this critical piece of infrastructure. As long as the two basins remain hydrologically connected, we will continue to see harmful invasive species moving in both directions, just like the zebra mussel, the round goby, and the Asian carp have done. The only reliable way to eliminate our exposure to this risk is to restore the natural watershed divide.

Update - post hearing briefs available:

• Plaintiff states Michigan, Wisconsin, Minnesota, Ohio, and Pennsylvania
• Defendant U.S. Army Corps of Engineers
• Defendant Metropolitan Water Reclamation District of Greater Chicago
• Intervenor City of Chicago
• Intervenor The Coalition to Save Our Waterways
• Intervenor Wendella Sightseeing Company, Inc.

More updates - 

NRDC’s issue brief “Re-Envisioning the Chicago River: Adopting Comprehensive Regional Solutions to the Invasive Species Crisis” outlines a bold solution to the Asian carp problem and other water management challenges. From NRDC:

In response to a public health emergency more than 100 years ago, engineers reversed the Chicago River and built the Chicago Sanitary and Ship Canal to carry wastewater away from Lake Michigan, the city’s source of drinking water. The canal also provides a shipping link between the Mississippi River and the Great Lakes, opening navigation not only to recreational boats and commercial barges, but also to invasive species, and it diverts massive amounts of water from Lake Michigan. The unfolding Asian carp crisis reveals more than just the challenges faced by local, state, and federal agencies in stopping invasive species from entering the Great Lakes. It also exposes critical infrastructure deficiencies in the region’s wastewater, stormwater, and transportation systems.

For another perspective on the case, below is a guest commentary by David L. Rieser of McGuireWoods LLP in Chicago. Mr. Rieser represents The Coalition to Save Our Waterways, which as an intervenor in the litigation opposes the States’ request for a preliminary injunction (see The Coalition to Save Our Waterways post hearing brief). Mr. Rieser was kind enough to share a short commentary and response to Thom Cmar’s guest post:

Tom Cmar's post documents not only the weak points in the State's case but the inappropriateness of attempting to use the courts to address issues of this nature. The CAWS is not some 19th century industrial artifact to be removed to make way for open space. It was and remains an engineering triumph continuing to perform its task of conveying wastewater and providing for navigation. It was and remains a huge economic engine for the region responsible for billions of dollars and thousands of jobs. Recognizing its importance, the United States has taken a huge role in funding and maintaining its operations. Congress has spoken directly to the importance of navigation through the CAWS in the region's and the nation's economy. It is not a "nuisance" as the States claimed, but integral to the region's history and future.
 
Congress has also spoken directly to the issue of invasive species migrations by creating task forces and funding numerous efforts of the Army Corps of Engineers, the USEPA, the US Fish and Wildlife Service and all of the other government agencies to address these problems. The Asian Carp Regional Coordinating Committee, an ad hoc merger of two such task forces has spent the last year coordinating monitoring and sampling to evaluate the presence of Asian Carp in the CAWS, evaluating the efficacy of the existing electric barriers, constructing an additional barrier between the Des Plaines River and the Sanitary and Ship Canal and constructing a new barrier.
 
Any federal judge would hesitate to issue an injunction to close the locks under these circumstances. A decision to close the locks would have far reaching economic and social impacts, involving many stakeholders who are not even before the judge. As a result, we have argued that an injunction would be so momentous and have such a broad impact that such a decision should not be made by the courts but should rightfully be made by Congress. An injunction would also contravene the will of Congress which has not only stated repeatedly that the locks must be maintained to support navigation but has also identified specific means and decionmakers for addressing the Asian carp issue.

Five states file new lawsuit against federal government to protect Great Lakes from Asian carp

After the Supreme Court refused to hear the Great Lakes states’ dispute regarding Asian carp, the states have moved ahead with “Plan B” in the legal battle to protect the lakes from the invasive species threat – a lawsuit against the U.S. Army Corps of Engineers and Metropolitan Water Reclamation District of Greater Chicago in federal district court.  Five states - Michigan, Wisconsin, Minnesota, Ohio, and Pennsylvania – filed their joint complaint today in the U.S. District Court for the Northern District of Illinois.

The states’ complaint alleges that U.S. Army Corps of Engineers and Metropolitan Water Reclamation District of Greater Chicago have created a public nuisance by allowing Asian carp to threaten the waters and fisheries of the Great Lakes, a public resource.  The complaint further requests that the court review the actions of the Corps of Engineers, a federal agency, pursuant to the Administrative Procedure Act.

The states have requested a preliminary injunction to make the federal and local agencies protect the Great Lakes with “the best available methods to block the passage of, capture or kill bighead and silver carp.”  Specific measures demanded include installing physical barriers, closing connecting navigation locks (except in emergency situations), and using fish poison if needed.  The complaint further seeks to force the agencies “to develop and implement plans to permanently and physically separate carp-infested waters in the Illinois River basin and the [Chicago Canal] from Lake Michigan.”

The federal government essentially invited this type of lawsuit when it argued that the Supreme Court should not hear the states’ claims, leaving states to pursue claims in lower federal courts instead.  The states, led by Michigan, have taken legally sound and aggressive action using well established legal doctrines to protect the Great Lakes from this new threat. Public nuisance claims have long been used to against water pollution, and the same principles could apply to stop the invasive Asian carp, which could devastate the Great Lakes fisheries and causes billions of dollars in damage.  With the Obama administration and Congress failing to solve the problem, this lawsuit by the states may be the best hope for protecting the Great Lakes from Asian carp.

Update 1: The states have also filed a motion for preliminary injunction and supporting brief; see also the federal defandants brief opposing the preliminary injunction.

Update 2: Coverage of the new lawsuit in the Detroit News (by John Flesher of the Associated Press) with comments by Nick Schroeck of the Great Lakes Environmental Law Center.

One win in the courts, one loss on the ground in the fight against invasives in the Great Lakes

There’s been some good news/bad news in the fight against invasive species in the Great Lakes the past few weeks.  Let’s get the bad news out of the way first – a 19-pound Asian carp was found near the shore of Lake Michigan, past the navigation lock that the Supreme Court refused to close despite a legal challenge by Michigan and most other Great Lakes states.  We knew that Asian carp would inevitably reach the Great Lakes unless the Supreme Court ordered the Army Corps to take immediate protective action (which didn’t happen).  Now the question is what the Army Corps and other government agencies will do about it.  With the federal government’s history of mistakes on Asian carp and the ongoing bureaucratic response mess, it’s hard to be optimistic on this one.

So let’s move on to the good news.  The New York Court of Appeals (New York’s highest court) let stand a lower state court ruling upholding New York’s strict new ballast water standard against a legal challenge from the ports and shipping industries.  Big kudos to NRDC’s lead attorney on the case, Thom Cmar, who wrote a guest post on Great Lakes Law on the lower court ruling last year.  Andy Buchsbaum of NWF (which joined with NRDC on the case) has an excellent post on the huge legal and practical significance of this win, given New York’s position as an entryway for ships to the rest of the Great Lakes system.

And one final piece of good news, perhaps related to invasive species.  Lana Pollack’s appointment to the International Joint Commission is now a done deal, following her confirmation by the U.S. Senate.  For more on Lana and the IJC, see my prior post.  Lana is a dedicated environmental advocate who will push the IJC to take more aggressive action against invasive species and other threats to the Great Lakes.  Glad to have her at the IJC, congrats Lana.

It’s time to acknowledge the federal government’s role in the introduction and spread of Asian Carp

Next week, the U.S. Supreme Court will consider Michigan’s motion to reopen the Wisconsin v. Illinois consent decree (now supported by every other Great Lakes state except Illinois) in response to the threat of Asian carp invading Lake Michigan and the Great Lakes ecosystem through the Chicago canal system.  The federal government has sided with Illinois and the Metropolitan Water Reclamation District of Greater Chicago in opposing Michigan and the other Great Lakes states.  In her brief for the United States, the Solicitor General admits that federal agencies (the Corps and EPA) are aware of the threat that Asian carp pose to the Great Lakes and that the carp are an invasive species that have successfully reproduced in the Mississippi River system.  The Solicitor General also recounts at length the efforts that the Corps and EPA have taken through the Asian Carp Regional Coordinating Committee to stop the Asian carp from entering Lake Michigan.  But noticeably absent from the Solicitor General’s brief is any acknowledgment of the federal government’s role in creating this ecological disaster.

Dan Egan of the Milwaukee Journal Sentinel first covered the U.S. Environmental Protection Agency’s role in the introduction and spread of Asian carp back in 2006.  After reading Dan’s story again, it’s surprising that most recent media accounts still report that Asian carp were released during floods into the Mississippi River from catfish farmers in Arkansas and Mississippi in the 1990s.  The complete story is not so simple and demonstrates federal involvement and support of the introduction and propagation of Asian carp in the waters of the United States.  To its credit, the US Fish and Wildlife Service’s Asian Carp Management coordination website does admit that “Introductions of Asian carps are combined results of stockings directly by or authorized by various agencies, unauthorized stockings by private individuals, and unintentional escapes from university research facilities, federal and state agency facilities, and private aquaculture operations.”

The Great Lakes Environmental Law Center has submitted a Freedom of Information Act request to EPA seeking all documents related to EPA involvement in Asian carp research and importation and we are waiting for the documents to be produced.  In the mean time, we have uncovered, through our own research, official EPA documents that clearly show the agency’s involvement with Asian carp. 

For instance, in a Technology Assessment of Aquaculture Systems for Municipal Wastewater Treatment, funded by the EPA in 1984, the authors write, “A group of fishes know as Chinese carp, which include the silver, bighead, black, and grass carp, and the European common carp may be considered the most likely candidates for achieving the objective of wastewater treatment. These fish possess the feeding habits that meet the biological considerations for wastewater purification, but, the most important consideration is their hardiness and adaptability to a wide range of environmental conditions.” (See pages 12-14.)

Further, a 1983 Project Summary details the EPA-funded study of silver and bighead carp which concludes by recommending that “the addition of silver and bighead carp to a lagoon wastewater treatment system increases the efficiency of that system…the inclusion of these natural filters can increase treatment levels by as much as 25-30%.”  The summary mentions that the research was funded wholly or in part by the US EPA.  

We also have documents showing research conducted by the US Fish and Wildlife Service on bighead carp in 1993, references to other federal studies dating to the 1970s, and we suspect that our FOIA request will yield further information.  While we support natural treatment methods for wastewater, the spread of Asian carp and the potential destruction of our native ecosystems is the direct result of research and funding provided by our federal government.  While the federal government may have had only good intentions in facilitating the introduction and spread of Asian carp in the US, its role in creating this problem should not be overlooked by the U.S. Supreme Court.  If the Solicitor General wants to tell the full story of federal management of Asian carp, she should mention the EPA’s active role in introducing these fish to the United States, and not just the recent control efforts.

Huge thanks to Wayne State University Law School Environmental Clinic student Paul Santi for doing most of this research, which was overseen and directed by Nick Schroeck of the Great Lakes Environmental Law Center.  Nick has been doing a tremendous job of educating the public about this issue - he recently appeared on NPR's Science Friday - and is a great contact for more information.

Update: Sandra Svoboda of Metro Times has fantastic additional coverage in her article - Fishing for Truth: Did government agencies help create the Asian carp crisis?  The article quotes Mike Freeze, a former Arkansas Game and Fish commissioner who worked for the agency in the late 1970s and saw first-hand the role of the federal government in bringing Asian carp to the United States.  "One project was trying to see if silver and bighead carp could be used to clean up human sewage," Freeze says.

Federal court rules against Bureau of Reclamation in water diversion case citing concerns over invasive species

This guest post is by Nick Schroeck, Executive Director of the Great Lakes Environmental Law Center.  While Nick was just recently named Executive Director of the Great Lakes Environmental Law Center, he has long been the lead attorney on this precedent-setting water diversion case.  See my prior post for more background on the dispute and legal issues.

The Great Lakes Environmental Law Center and the Wayne State Environmental Law Clinic won a legal victory that will help ensure that issues like invasive species are given careful consideration in proposed federal water projects. The federal District Court for the District of Columbia has ruled that the Bureau of Reclamation must properly consider the consequences of an environmentally unwise and economically unsound water transfer project.  The New York Times covered the decision, citing our brief. 

The case involves the Northwest Area Water Supply (NAWS) project, a proposed Bureau of Reclamation pipeline that would pump water from the Missouri River basin across the continental divide into Manitoba, Canada and the Hudson Bay basin for the purposes of supplying water to Minot, North Dakota.  Conservationists were concerned about the proposal, not merely because it is a federal boondoggle which has already wasted taxpayer money, but due to the precedent that a trans-basin diversion on this scale, without proper environmental impact analysis, could set for the Great Lakes.

In 2005, the same court found the Bureau of Reclamation’s initial environmental analysis faulty and ordered them to properly evaluate the potential consequences of the proposed water transfer and to revisit their environmental impacts analysis. The Great Lakes Environmental Law Center has been working on the NAWS project for years as part of our work on transbasin water diversions.  We submitted comments on the Bureau’s draft Environmental Impact Statement in January of 2008 citing some of our concerns regarding invasive species, population trends, lack of water conservation, and lack of international cooperation. In December of 2008, the Bureau issued a final Environmental Impact Statement on the project.  

The Great Lakes Environmental Law Center, along with the National Wildlife Federation, and their affiliates South Dakota Wildlife Federation and Minnesota Conservation Federation, filed a friend of the court (amicus) brief in the case last fall in support of Manitoba’s challenge of the final Environmental Impact Statement.  In strong language, the Court again ruled that the Bureau failed to comply with the National Environmental Policy Act by not adequately evaluating the potential ecological consequences of invasive species transfer from the Missouri River basin to the Hudson Bay basin.  The Court went on to conclude that potential impacts to Canada’s waters must also be studied and that the Bureau failed to analyze cumulative impacts to the Missouri River system from the proposed diversion.

Pursuant to the Court’s March 5, 2010 ruling, the Bureau will now have to correctly analyze the consequences of this potentially disastrous project. The decision is also helpful in ensuring that the environmental review process set forth in NEPA is followed and that federally funded water diversions are given a very hard look prior to approval. Overall it’s a great win for the GLELC, the Wayne State Environmental Law Clinic, and for freshwater resources. Former clinic student Catherine Deciechi deserves huge credit for doing the heavy lifting on writing the brief under my supervision.

New York appeals court upholds state ballast water regulations

We can end the week with some good legal news in the fight against invasive species in the Great Lakes.  A state appeals court in New York has rejected a challenge by shipping interests against the state’s ballast water regulations.  The decision affirms the ruling of the lower court that the state may impose stricter requirements to protect the Great Lakes from ballast water pollution than the federal government’s minimal requirements.  For more background on the case, see the previous guest post by Thom Cmar of NRDC, one of the lead attorneys on the case.  Good work to the NY Attorney General’s office, NRDC, and NWF on this win.

Armed with new economic study, Michigan renews request to the Supreme Court to close Chicago locks and keep Asian carp out of Great Lakes

Michigan Attorney General Mike Cox has just filed a renewed motion with the U.S. Supreme Court for a preliminary injunction to close Chicago-area locks to keep Asian carp from entering the Great Lakes.  The Supreme Court previously denied Michigan’s motion for a preliminary injunction.  However, Michigan relies on new information regarding eDNA tests showing evidence of Asian carp in Lake Michigan, which the federal government failed to disclose to the Supreme Court until after the Court ruled against Michigan.  Michigan also relies on a new study detailing the relatively minimal economic effects of closing the locks to separate the Mississippi River basin from the Great Lakes basin. 

The study, titled “Chicago Waterway System Ecological Separation: The Logistics and Transportation Related Cost Impact of Waterway Barriers” was prepared by Dr. John C. Taylor and James L. Roach.  Dr. Taylor is an Associate Professor of Supply Chain Management at Wayne State University and widely respected expert on the logistics of intermodal transportation (the full study and qualifications of Dr. Taylor are included in the Appendix to Michigan’s Renewed Motion for Preliminary Injunction).  The study concludes that Illinois’ claim that “even a temporary closure of the locks will devastate the local economy” cannot be supported.  It details how statistics submitted to the Court by Illinois and the federal government claiming the potential economic costs of lock closure to be $190 million are “seriously exaggerated” and would only amount to less than $70 million (compared to the billions of dollars at stake if Asian carp enter the Great Lakes).  The study further notes that cargo though the O'Brien Lock is already down 45% in recent years, as canal barge traffic has diminished in its economic importance to the region.  And in response to Illinois’ claims that closing the locks would increase truck traffic (with resulting environmental impacts), the study determined that truck traffic would only increase by 0.1%.  

The tough question is whether this new information about eDNA evidence of Asian carp in Lake Michigan and the minimal economic impact of closing the locks will persuade the Supreme Court, given the federal government’s previous support of Illinois.  The additional filings by Michigan may also persuade the Court to reopen the underlying Wisconsin v. Illinois case (response briefs are due on February 19).  Either way, Attorney General Cox should be commended for using the best available scientific and economic information to persuade the Court to protect the Great Lakes.  Michigan has the law, science, and economics on its side, along with almost every other Great Lakes state and the province of Ontario.  Illinois has the backing of the Obama administration and federal government, at least for now.  But that could change with new information and increased public outcry.  Stay tuned.

CARP ACT introduced in Congress to prevent spread of Asian carp into Great Lakes

New legislation, titled “Close All Routes and Prevent Asian Carp Today” (or CARP ACT), was introduced in the U.S. Senate (S. 2946) and House (H.R. 4472).  The legislation would direct the Army Corps of Engineers to implement many of the same emergency measures to keep Asian carp out of the Great Lakes that Michigan sought in its motion for a preliminary injunction to the Supreme Court.  The lead sponsors are U.S. Senator Debbie Stabenow (D-MI) and U.S. Representative Dave Camp (R-MI).  Despite the bipartisanship, I doubt the CARP ACT will become law, but if Senator Dick Durbin of Illinois wants to “meet in the halls of Congress and come up with a real solution”, at least there is a bill to use.

Feds acknowledge Asian carp DNA in Lake Michigan in letter to the Supreme Court

Just hours after the Supreme Court issued its ruling denying Michigan’s motion for a preliminary injunction to take immediate action to protect the Great Lakes from Asian carp, the federal government acknowledged that Asian carp DNA has now been found in Lake Michigan.  In a letter to the Supreme Court, the Solicitor General stated that positive samples of Asian carp DNA have been found in the Calumet River and Calumet Harbor, past the Army Corps’ electric barrier which is supposed to be keeping the Asian carp out of the Great Lakes.

So with the Supreme Court refusing to order emergency measures through a preliminary injunction, and the feds admitting that more Asian carp DNA has already been found past the electric barriers, what’s next?  On the legal front, Illinois and the United States must file briefs responding to Michigan’s petition to reopen the Wisconsin v. Illinois case by February 19, and a decision by the Court could then come soon after.  On the political front, the chair of the White House Council on Environmental Quality Nancy Sutley has responded to calls by Michigan Governor Jennifer Granholm and Wisconsin Governor Jim Doyle for a summit meeting, now planned for the first week of February.  But as Gary Wilson points out on the Great Lakes Town Hall website, the key White House player on this issue should be Chief of Staff Rahm Emmanuel, who until last year was a Chicago congressman representing a lakefront district.  If Emmanuel is at the meeting, it’s a good sign that the White House is taking real leadership on this issue and is ready to direct all of the federal agencies (including the Army Corps of Engineers) to solve this problem.

Finally, here are some highlights of the media coverage this week, focusing on the Supreme Court’s order denying the preliminary injunction and the feds’ admission of more Asian carp DNA past the electric barriers:

• Chicago Tribune (John Flesher, AP)
• New York Times (Gabriel Nelson, Greenwire)
• Detroit News (Jim Lynch)
• Detroit Free Press (Tina Lam)
• Milwaukee Journal Sentinel (Dan Egan)

Supreme Court denies Michigan’s request to take immediate action on Asian carp

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

Michigan Attorney General Mike Cox launches Stop Asian Carp website for public outreach

Michigan Attorney General Mike Cox has created a Stop Asian Carp website – www.stopasiancarp.com – to educate the public about this threat facing the Great Lakes.  The website itself is a very useful resource, with primary documents, news coverage, and lots of background information.  I’m also impressed with how Michigan’s Attorney General is serving as an advocate for the Great Lakes on this issue beyond the courtroom.  Good advocacy begins with public outreach and education, and Mike Cox is building public support for this important work by taking his message directly to citizens. 

United States and Illinois file briefs opposing Michigan’s call to close the Chicago Canal locks

The State of Illinois, the United States, and the Metropolitan Water Reclamation District of Greater Chicago have filed their respective responses to Michigan and the other Great Lakes states in the U.S. Supreme Court.  (I’ve created a separate post with all Supreme Court filings involving the Asian carp at www.greatlakeslaw.org/blog/2010/01/supreme-court-asian-carp-filings.html.) 

I didn’t see any surprises in their responses – basically all three government defendants are arguing that (1) the Supreme Court should not get involved in the Asian carp crisis; (2) federal, state, and local governments are already doing everything possible to stop the spread of Asian carp into the Great Lakes; and (3) the risk of Asian carp entering the Great Lakes is overblown anyway. 

My first take is that the defendants’ attempt to minimize the risk of Asian carp entering the Great Lakes undermines their credibility about how serious they are in responding to this threat.  The defendants seek to discredit the DNA testing relied on by Michigan to show that Asian carp are close to the Great Lakes, but at the same time brag about how they poisoned a six mile stretch of water killing all aquatic life in an extreme effort to keep the carp away.  The truth is that the defendants have the same concerns about Asian carp getting into the Great Lakes as Michigan and the other states, but they are just not willing to take the steps needed to solve the problem.

The bigger issue here is that the United States has entered this dispute squarely in support of the Army Corps of Engineers and State of Illinois.  The United States should be supporting the efforts of Michigan, Ohio, Wisconsin, Minnesota, and New York in demanding immediate action to stop the threat of Asian carp entering the Great Lakes.  As a candidate, President Obama pledged a “zero tolerance” policy on invasive species in the Great Lakes, but this action totally contradicts that rhetoric.  In the Supreme Court, the United States is presenting the interests of its most environmentally irresponsible agency – the Army Corps of Engineers – and ignoring broader long-term interests shared by the U.S. EPA, Fish & Wildlife Service, and many members of Congress.  The fact is that Asian carp are here because of mistakes by the federal government, and now that same federal government is telling the Supreme Court and five Great Lakes states to let the Army Corps keep doing whatever it wants.  That’s not the change we were promised.

Update: For coverage of the political fallout of the Obama administration siding with Illinois in the Asian carp dispute, see today’s coverage by Dan Egan of the Milwaukee Journal Sentinel.

State of Wisconsin joins other states in Supreme Court fight asking for preliminary injunction to protect the Great Lakes from Asian carp

Wisconsin Attorney General J.B. Van Hollen and the Wisconsin Department of Justice have now joined the U.S. Supreme Court fight over the Chicago Canal and Asian carp, supporting Michigan’s request for a preliminary injunction.  Wisconsin has filed a brief with the Supreme Court explicitly supporting Michigan’s call to close the key locks on the Chicago Canal and connecting channels, operate electric barriers in the canal at full strength, and monitor for Asian carp and eradicate any Asian carp found until a long-term solution is reached. 

Wisconsin joins Minnesota in supporting Michigan’s motion for a preliminary injunction; Ohio has filed a more modest memo with the Supreme Court supporting Michigan’s petition to reopen the Chicago diversion decree.  Illinois’ response to the request for a preliminary injunction is now expected by January 5.  For more on Wisconsin’s action, see coverage by Dan Egan of the Milwaukee Journal Sentinel. 

Update: I’ve created a new category of posts on Asian Carp and the Chicago Canal Litigation at www.greatlakeslaw.org/blog/asian-carp/.

State of Minnesota joins Michigan in asking Supreme Court for a preliminary injunction to protect the Great Lakes from Asian carp

Minnesota Attorney General Lori Swanson has filed a brief in the U.S. Supreme Court on behalf of the state of Minnesota supporting Michigan’s motion for a preliminary injunction to protect the Great Lakes from Asian carp pending a reopening of the Wisconsin v. Illinois original action.  The Supreme Court may take up the motion at its January 8, 2010 conference.  The state of Ohio has also filed a short memorandum with the Supreme Court supporting Michigan’s petition to reopen the case and modify the 1967/1980 Chicago diversion decree.  Later this week, I expect the state of Illinois will respond to the motion, perhaps offering a glimpse of its arguments in favor of keeping the Chicago Canal open, despite the risk it creates for allowing invasive Asian carp to enter the Great Lakes.

Meanwhile, popular support for taking effective action to prevent the Asian carp from entering the Great Lakes through the Chicago Canal is building.  The New York Times ran an editorial that summed things up nicely:

The only sure way to stop carp — and whatever other invasive species are waiting — is to close the canal and again separate the Mississippi and Great Lakes watersheds. That would be hugely costly and politically difficult, given the importance of shipping to the region.

Closing the canal locks temporarily, while expensive and disruptive, is probably the best way to buy time until a solution can be devised that does not place an immense, fragile ecosystem entirely at the mercy of waterborne shipping. There isn’t a lot of time left to act.

Michigan lawmakers to join legal fight over Asian carp in the Supreme Court

Two leading Michigan state lawmakers have announced that they intend to file a brief supporting Michigan’s lawsuit in the Supreme Court against Illinois over Asian carp.  Senator Patty Birkholz (R-Saugatuck), chair of the Senate Natural Resources and Environmental Affairs Committee, and Representative Rebekah Warren (D-Ann Arbor), chair of the House Great Lakes and Environment Committee, have joined together in a bipartisan effort to protect the Great Lakes from Asian carp.  They made the announcement just one day after Michigan filed its petition and motion for preliminary injunction in the Supreme Court.  Senator Birkholz’s announcement is here;  Representative Warren’s announcement is here.

Senator Birkholz and Representative Warren have exceptionally strong records of protecting the Great Lakes from invasive species.  Senator Birkholz was the lead author of the Michigan law that regulates ballast water discharges in the Great Lakes to prevent the spread of invasive species.  When shipping companies brought a Constitutional law challenge against the ballast water regulations, Senator Birkholz and other legislative leaders joined the State of Michigan in successfully defending the regulations in federal court.  I represented Senator Birkholz and the other legislative leaders through the Great Lakes Environmental Law Center, and we got a great result in the fight against invasive species.

Senator Birkholz and Representative Warren earlier this month sponsored resolutions, passed by both the Michigan Senate and House, calling on the federal government to take immediate action to protect the Great Lakes from Asian carp.  But the federal government has failed to take the necessary action, so the Michigan lawmakers will join the state’s Attorney General in bringing the fight to the Supreme Court.

I’m honored to be representing these two legislative leaders through the Great Lakes Environmental Law Center.  The Supreme Court won’t be considering Michigan’s petition and motion for preliminary injunction until early January, so it’s not yet clear how the case will proceed.   

The carp case brings national attention to the Great Lakes:

The Asian carp case has gotten national attention, with coverage in the New York Times and many other major newspapers.  The New York Times website also has an excellent story on the case from Greenwire. 

And the case brings calls from environmental advocates for a long term solution:

Environmental advocates are looking at the dispute as an opportunity to explore long term solutions to protect the Great Lakes with alternatives to the Chicago diversion.  Thom Cmar, an attorney with the Natural Resources Defense Council in Chicago, has been a leader in the legal battles over invasive species in the Great Lakes and writes about the case on NRDC’s Swichboard blog.  Like Thom, Andy Buchsbaum of the National Wildlife Federation sees the case as chance to rethink the Chicago diversion, which he calls the “single biggest threat” to the Great Lakes.  I completely agree, as this crisis presents an opportunity to develop a modern solution to water management, navigation, and invasive species protection in the Great Lakes region.

Ohio to join Michigan in Supreme Court case against Illinois:

Ohio Attorney General Richard Cordray has announced that the State of Ohio will join Michigan in petitioning the Supreme Court to reopen the case against Illinois, the U.S. Army Corps of Engineers, and the Metropolitan Water Reclamation District of Greater Chicago. (Thanks to Dick Bartz, formerly a senior official with the Ohio DNR, for bringing this to my attention.)

Update: Ohio Attorney General Richard Cordray has now filed a short memorandum with the Supreme Court supporting Michigan’s petition to reopen the case and modify the 1967/1980 Chicago diversion decree.

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.
****

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.

Michigan’s Attorney General and environmental groups threaten legal action to stop carp invasion into Great Lakes

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)