Great Lakes Law

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)

Great Lakes on the brink of Asian carp invasion thanks to “monumental government screwup”

Asian carp are poised to enter the Great Lakes, and may already be within the watershed, thanks to a series of disastrous decisions and mistakes by state and federal government agencies.  Scientists have collected DNA evidence showing that two distinct species of invasive Asian carp – the bighead carp and the silver carp – have made their way up the Mississippi River system and past the ineffective electric barriers operated by the Army Corps of Engineers.  The electric barriers were supposed to keep the Asian carp from entering the shipping canal that artificially links the Mississippi River system with Lake Michigan and the Great Lakes.  But delays, operating mistakes, and lack of political will by the Army Corps to protect the Great Lakes from this devastating invasive species could mean that Great Lakes fisheries will never be the same.

The history of this problem is a telling and angering example of how state and federal agencies – often the same agencies entrusted with environmental protection and natural resource conservation – have put the interests of a few politically connected Arkansas agribusinesses and shipping companies ahead of the millions of citizens that value a healthy Great Lakes fishery.  Over three years ago, Dan Egan of the Milwaukee Journal Sentinel wrote an extensive three part investigative story – Troubled Waters: The Asian Carp Invasion – detailing the how the U.S. Environmental Protection Agency and Arkansas Game and Fish Commission were responsible for this ecological disaster.  The entire series is worth the time to read – Part 1: Chaos uncorked, Part 2: Unwanted bounty, and Part 3: Last line of defense.  Eric Sharp of the Detroit Free Press also has a good short history of the debacle, which he summarizes as a “monumental government screwup”.

The historic mistakes of the US EPA (which thought the carp could help treat sewage) and state officials in Arkansas (looking out for their agribusiness industry) resulted in the invasive Asian carp taking over many stretches of the Mississippi River system.  The Asian carp can be huge – often over 50 pounds – and eat up to 40% of their body weight daily, ravaging the natural ecosystem.  Because the Chicago Sanitary and Ship Canal provides an artificial link between the Mississippi River system and Lake Michigan, for years conservationists have feared that the carp would make their way up the river and into the Great Lakes.  The Army Corps of Engineers was supposed to build an effective electric barrier, but the project became another disaster of delays and ineptitude, with the electric barrier never operating at the full strength required, due to opposition from the few shipping companies that use the Chicago Canal.  As a result, the Asian carp have now breached the electric barrier and are moving towards Lake Michigan.

At this point, the only hope is to close the locks and prevent any further spread of the Asian carp up the Chicago Canal.  The next step is then to close the Chicago Canal and restore the natural separation between the Mississippi River system and the Great Lakes.  Government won’t do this on its own initiative, as the relevant agencies are clearly too reactive and beholden to shipping interests to take aggressive action to protect the Great Lakes.  Unfortunately, these are the same agencies that will be getting millions of taxpayer dollars from Congress and President Obama to “restore” the Great Lakes from invasive species.  Once again, it seems the federal government would rather throw money – ineffectively – at the problem than take proactive action to prevent the problem from occurring or getting worse.  The national environmental organizations have so far been reluctant to criticize the Obama administration, but while this problem has historic roots, the current leadership of the EPA and Army Corps of Engineers should be held accountable for their recent mistakes.  Moving forward, we need to decide if the health of the Great Lakes fisheries is more important than a few shipping companies operating on an outdated canal.

Update: Additional coverage from the Washington Post by Kari Lydersen and Peter Slevin

Great Lakes Environmental Law Center and other conservation organizations join with Manitoba and Canada in opposing U.S. water diversion project in court

The Great Lakes Environmental Law Center has filed an amicus curiae (friend of the court) brief in the U.S. District Court for Washington D.C. in Government of the Province of Manitoba v. Ken Salazar, et al.  The case involves a challenge by Manitoba, joined by Canada and several conservation organizations, to the U.S. Bureau of Reclamation’s Environmental Impact Statement for the Northwest Area Water Supply (NAWS) Project. 

The NAWS Project is the first United States transbasin water transfer project to breach the barrier between the Missouri River Basin and the Hudson Bay Basin.  The diversion could transfer invasive species and diseases into downstream waters in the United States and Canada, and threatens the quality and quantity of water supplies.  The proponents of the project have not properly examined less damaging alternatives and options, such as water conservation and recycling.  Nor have the project’s proponents undertaken a full review of the environmental impacts of the water diversion.  For additional background on the NAWS project and other related projects, see the Great Lakes Environmental Law Center’s Transbasin Water Diversions webpage.

Conservationists have long been concerned with the risks of the NAWS project to water resources.  The NAWS water diversion represents the first ever federal project involving an interbasin water transfer linking the Missouri River Basin to the Hudson Bay Basin.  For better or worse, it could become an important precedent-setting project for other water diversions.  Given the stakes, the Bureau of Reclamation should have adhered strictly to the requirements of the National Environmental Policy Act with a thorough and comprehensive Environmental Impact Statement.  Instead, the Bureau of Reclamation is trying to rush through a novel and potentially devastating project that creates a danger for all fresh water basins in the United States, particularly the Great Lakes.

In addition to setting a precedent for other water diversions, the NAWS project threatens water quality and aquatic life in the Missouri River Basin and Hudson Bay Basin.  The diversion of water from one separate drainage basin to another will also impact residential, commercial and recreational water use.  The reductions of water levels in combination with the impacts from climate change pose an increased risk of invasion of non-native species and subsequent transfer of invasive species through the pipeline to the Hudson Bay Basin.

As detailed in our brief, the NAWS project advances an environmentally and economically unsound water diversion.  The project threatens to transfer invasive species, fails to account for climate change impacts, and completely ignores smarter, cheaper, less damaging alternatives like water conservation.  In this project and other legal advocacy on transbasin water diversions, the Great Lakes Environmental Law Center will continue to work for sound, practical policy solutions for water resource management while opposing dangerous, precedent-setting projects that could harm the people and environment of the Great Lakes region.

The Great Lakes Environmental Law Center filed the brief jointly with the National Wildlife Federation, Minnesota Conservation Federation, and South Dakota Wildlife Federation, supporting the Province of Manitoba (Manitoba’s brief is available here).  The Government of Canada also submitted an amicus brief to support Plaintiff Manitoba’s arguments. Attorney Nick Schroeck led the effort, with invaluable assistance from Wayne Environmental Law Clinic student Catherine Deciechi.

Minnesota appeals court upholds the state’s new ballast water permit despite challenge from environmental group

The Minnesota court of appeals has affirmed the state agency’s issuance of a new ballast water permit, despite an environmental group’s challenge that the permit does not do enough to protect Lake Superior from aquatic invasive species.  The Minnesota Pollution Control Agency’s ballast water discharge permit allows ships to delay new treatment technologies to prevent biological pollution until 2016, leaving Lake Superior vulnerable to more invasive species for another seven years.  The Minnesota Center for Environmental Advocacy filed a legal challenge based on Lake Superior’s designation as an “outstanding value resource water,” which requires the state to protect the lake from “degradation” from new pollution threats.  The Minnesota court of appeals, in a decision affirming the state’s issuance of the permit, acknowledged that the environmental group raised legitimate concerns about the general permit and the state’s approach to protecting Lake Superior.  However, the court essentially deferred to the state agency’s technical expertise and legal interpretations, concluding that the issuance of the general permit was not arbitrary and capricious or an error of law (the legal standard that courts use in this type of challenge).  Despite the legal setback, Minnesota is still putting in place a regulatory system for ballast water discharges in the Great Lakes (it’s just not as strong or as immediate as it should be), putting more pressure on the industry and federal government to finally address the problem of aquatic invasive species.

Federal appeals court upholds EPA rule exempting water transfers from Clean Water Act regulation

The Eleventh Circuit Court of Appeals, based in Atlanta, has upheld the Bush EPA’s controversial water transfer rule, which would allow polluted water from a dirty waterbody to be pumped and dumped into a pristine waterbody without a Clean Water Act permit.  This is a critically important issue for water quality and invasive species in the Great Lakes and nationally.  For background on the issue, and the stakes for our lakes, rivers, and streams, see my prior post, “US EPA issues final rule exempting water transfers from Clean Water Act regulation.” 

Several states and numerous environmental organizations (including the Great Lakes Environmental Law Center representing the Michigan Council of Trout Unlimited) have filed petitions challenging the rule in federal court.  However, the petitions were stayed because a prior case, Friends of the Everglades v. South Florida Water Management District, which had been going on since before the final rule was issued, raised the same substantive issues.

The core of the issue is the legality of the “unitary waters” theory that the Bush EPA used to exempt the transfer of pollutants between waterbodies from Clean Water Act regulation.  The Clean Water Act bans the “discharge of any pollutant” without a permit.  “Discharge” is defined as “any addition of any pollutant to navigable waters from any point source.”  (See 33 U.S.C. §§ 1311, 1342(a)(1), 1362(12)).  Under the EPA’s “unitary waters” theory, the waters of the United States are not distinct lakes, rivers, and streams, but one big bucket of water.  So, under this theory, taking polluted water from a dirty river and dumping that water into a pristine trout stream is not “adding” pollutants to navigable waters (which would otherwise be illegal from point sources without a permit).

As the court’s decision noted, “[t]he unitary waters theory has a low batting average.  In fact, it has struck out in every court of appeals where it has come up to the plate.”  The other courts considering this issue “take the view that the transfer of pollutants from one meaningfully distinct navigable body of water to another is an ‘addition … to navigable waters’ for Clean Water Act permitting purposes.”

However, these prior cases were all decided before the Bush EPA issued a final rule adopting the unitary waters theory.  Agency rules are entitled to deference as long as the rule is a reasonable interpretation of an ambiguous statute.  (This is usually called Chevron deference, named after the Supreme Court’s decisions in Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984)).  Chevron deference is a simple concept – if the statute is not clear, then the agency gets deference in its interpretation, unless its interpretation is arbitrary and capricious.  As the court in this case stated, for the EPA’s regulation to be upheld, “there must be two or more reasonable ways to interpret the statute, and the regulation must adopt one of those ways.”

The court ultimately concluded that the relevant Clean Water Act language could be interpreted in at least two different ways, and that the EPA’s rule is consistent with one of those interpretations:

There are two reasonable ways to read the § 1361(12) language “any addition of any pollutant to navigable waters from any point source.”  One is that it means “any addition . . . to [any] navigable waters;” the other is that it means “any addition . . . to navigable waters [as a whole].” 

The court further acknowledged that the EPA’s interpretation undermines the Clean Water Act’s goals, but recognized the political realities that led to an imperfect Clean Water Act:

[I]t may seem inconsistent with the lofty goals of the Clean Water Act to leave out of the permitting process the transfer of pollutants from one navigable body of water to another, but it is no more so than to leave out all non-point sources, allowing agricultural run-offs to create a huge “dead zone” in the Gulf of Mexico.  Yet we know the Act does that.  What this illustrates is that even when the preamble to legislation speaks single-mindedly and espouses lofty goals, the legislative process serves as a melting pot of competing interests and a face-off of battling factions.  What emerges from the conflict to become the enactment is often less pure than the preamble promises.  The provisions of legislation reflect compromises cobbled together by competing political forces and compromise is the enemy of single-mindedness.  It is not difficult to believe that the legislative process resulted in a Clean Water Act that leaves more than one gap in the permitting requirements it enacts.

Having concluded that the statutory language is ambiguous, the court ruled that the EPA’s regulation, which accepts the unitary waters theory that transferring pollutants between navigable waters is not an “addition . . . to navigable waters,” is a permissible construction of that language. 

However, this issue is far from over.  Earthjustice, which represents the plaintiff environmental groups, plans to file for a rehearing before a full circuit appellate panel.  With a circuit split, the issue could eventually go to the U.S. Supreme Court.  Further, the Obama EPA could make additional litigation unnecessary by simple rescinding the rule or revising it to protect our freshwater from pollution and invasive species transferred from other waterbodies.  For now, I expect a few more rounds of appellate litigation before environmental groups start pressuring the Obama EPA on this issue.

New York State Supreme Court upholds strict new state regulations to control ballast water discharges and prevent invasive species in the Great Lakes

The following guest post is by Thomas Cmar, an attorney with the Natural Resources Defense Council’s Midwest office in Chicago.  Thom and NRDC have been at the front of the fight to protect the Great Lakes from invasive species, defending tough new state laws and advocating for a strong national policy.  Thom’s work recently resulted in a big win in the legal battle against invasive species when the New York State Supreme Court upheld that state’s strict new regulations to control ballast water pollution against the shipping industry’s challenge in Port of Oswego Authority v. Grannis.

The New York State Supreme Court (Albany County) recently dismissed a challenge to permit conditions to control discharges of ballast water containing invasive species from ocean-going vessels into the freshwater ecosystems of the Great Lakes.  Shipping interests had argued that New York State’s restrictions were both illegal under state law and unconstitutional, largely because they were stricter than those in U.S. EPA’s nationwide Clean Water Act general permit.  The Natural Resources Defense Council and National Wildlife Federation intervened and filed a brief supporting the state’s regulations.  The decision of Justice Robert Sackett in Port of Oswego Authority v. Grannis rejected the shippers’ arguments and upheld the state regulations, finding “[i]t is undisputable that ballast water on ocean-going vessels ... is a source of significant potential and actual biological pollution for the state’s water systems.”

Ballast water from ocean-going vessels has introduced over 180 different invasive species into the Great Lakes, and new species are arriving at a rate of one every six months.  The toll has been breathtaking.  The entire Lake Michigan ecosystem has been changed by invasive species.  The filtering of invasive mussels has, for the first time ever, allowed the lake floor to be carpeted with algae.  These conditions have helped the invasive round goby become the most numerous fish in the lake, while all but eliminating many of the native species.  In the 1980’s, high profile invasions by the zebra mussel and sea lamprey decimated local drinking water infrastructure and fishing industries.

No one disputes that the ongoing invasion of alien species presents a serious problem for the Great Lakes, and not just from an environmental perspective.  Alien species have already cost the Great Lakes economy billions of dollars.  Strict rules on discharge of ballast water don’t just protect the Great Lakes ecosystem, they also help defend multi-billion dollar tourism, fishing, and recreational boating industries.

The Albany court’s ruling upholds New York’s decision to join Michigan and California as leaders in the fight to protect our waterways.  Like those other two states, the New York rules require ships operating in New York waters to begin using technology to treat any ballast water they discharge to ensure that it does not cause any more invasions.  An expert panel convened by the State of California was unable to find any valid scientific basis to recommend a less stringent alternative.

Here at the Natural Resources Defense Council, we believe that it is time for the federal government to step up and join these trailblazing states.  U.S. EPA has both the legal authority and the obligation to make tough ballast water rules like those in New York, Michigan, and California the national standard.  We will continue to advocate, and when necessary litigate, at both the state and federal level to protect the world’s last great places, like the unique freshwater ocean that is the Great Lakes.

EPA issues final general permit for pollution discharges from ships, but effective date delayed by court order

Under court order to regulate the discharge of ballast water and other pollution from ships, the EPA has issued a final general permit that covers all discharges and essentially allows ships to comply with the Clean Water Act with the same business as usual practices.  While the final permit was issued on December 18, a last-minute order from the same federal court that originally forced the EPA to regulate ships’ pollution will delay the effective date of the permit until February 6, 2009.  For more details, see the EPA’s pre-publication federal register notice of the permit.  For additional background, see my prior post on the vessel general permit, which was updated to include some of the most legally substantive public comments by environmental groups, states, and regional organizations.  

The court’s order delaying the effective date of the final vessel general permit will give the Obama administration and its new EPA Administrator a short window of opportunity to fulfill Obama’s campaign promise of a “zero tolerance policy for invasive species.”  Ballast water discharges are the worst source of invasive species in the Great Lakes, and the EPA’s general permit will not solve the problem.  The Obama administration and new EPA leadership should toss this general permit and replace it with tough, substantive standards that protect the Great Lakes and force immediate restrictions on ballast water pollution and the spread of invasive species.  This will be one of the Obama administration’s first environmental policy opportunities to make good on a popular and important campaign promise and protect the Great Lakes.

Federal appeals court upholds Michigan ballast water law, allows states to take action to stop the spread of invasive species in the Great Lakes

The U.S. Court of Appeals for the Sixth Circuit just issued a decision upholding Michigan’s ballast water statute and rejecting the shippers’ federal preemption and Constitutional challenges.  The Michigan law, which took effect in January 2007, requires ships to obtain a state permit and, if the ships will discharge ballast water, to use specified technologies to prevent the introduction of invasive species into the Great Lakes.  Several shipping companies, ports, and industry groups sued the state, alleging that the Michigan law is preempted by federal law and unconstitutionally interferes with interstate commerce. 

Working with the Great Lakes Environmental Law Center, I filed an amicus brief on behalf of a bipartisan group of state lawmakers to support the legal authority of Michigan and other states to protect the Great Lakes from ballast water pollution.  The state lawmakers represented by the Great Lakes Environmental Law Center are Michigan State Senator Patricia L. Birkholz (R) (the lead sponsor of the Michigan legislation), Minnesota State Senator Ann H. Rest (DFL), Illinois State Representative Karen May (D), Wisconsin State Senator Robert L. Cowles (R), and Wisconsin State Representative Jon Richards (D).  A coalition of environmental and conservation organizations also intervened on behalf of the state. 

In August 2007, Judge John Feikens of the U.S. District Court in Detroit rejected the shippers’ arguments and dismissed the suit in Fednav v. Chester, 505 F. Supp. 2d 381 (E.D. Mich. 2007).  The U.S. Court of Appeals for the Sixth Circuit, based in Cincinnati, has now affirmed the district court’s ruling and rejected the shippers’ federal preemption and Constitutional challenges to the Michigan law.

The court’s decision began by noting the problem of invasive species in the Great Lakes and the federal government’s failure to provide an effective solution:

[T]he Coast Guard’s ballast-water regulations applicable to the Great Lakes have remained essentially unchanged since 1993.  Vessels entering the Great Lakes carrying ballast water … must either conduct a mid-ocean ballast-water exchange before discharging ballast water into the Great Lakes, or retain their ballast water.  [Vessels that claim to have no ballast on board] are essentially unregulated with respect to their ballast-water practices.  They are thus free to take on ballast water in the Great Lakes, mix it with any sediment or residual water in their tanks, and then discharge the mixture into the Great Lakes.

The court first held that the industry plaintiffs lacked standing to challenge the new ballast water pollution control requirements, since the plaintiffs claimed to not even discharge ballast water in Michigan and thus would not be subject to the new technology requirements.  The court also dismissed on standing grounds the challenge by the Great Lakes ports association, since the ports are not subject to the new statute – only their customers (the shippers) are.  The only claims that were properly before the court were those of the shippers with respect to the new permit requirement.  Environmental groups have learned the hard way to properly establish standing before a court or risk dismissal of their claims, but it seems that in this case the industry plaintiffs (and their attorneys) failed to learn the same lesson, and it cost them.

On the merits of the challenge to the new permit requirement, the court held that federal law does not preempt state action to stop the spread of invasive species in the Great Lakes.  Rather, the court determined that:

Congress expressly contemplated [aquatic nuisance species] prevention measures – in the Great Lakes region no less – that are conducted by the states.  Indeed, it encourages them.  Federal law therefore does not preempt the field of aquatic nuisance species prevention measures.

The court went on to reject the shippers’ argument that it is “physically impossible” for shippers to comply with both Michigan’s permit requirement and federal law:

Pursuant to the permit requirement, owners of oceangoing vessels engaged in port operations in Michigan must pay $225 in fees and fill out several forms.  None of those things is impossible.

The court also rejected the shippers’ claim the Michigan statute violated the Constitutional dormant commerce clause by burdening interstate commerce.  In looking at the relative burden, the court recognized the huge problem of invasive species in the Great Lakes and the minimal costs imposed by the new permit:

To the extent the permit requirement even marginally reduces the problem of [aquatic nuisance species] introduction, its local benefits would be very large.  In contrast, the burdens imposed by the permit requirement – an application fee of $75, a yearly fee of $150, and the completion of a few forms – are de minimis [a fancy legal term for ‘no big deal’].

The court further rejected the dormant commerce clause argument by explaining that the dormant commerce clause is just that – a dormant federal power.  In this case, the commerce clause has not been dormant and subject to encroachment by Michigan and other states.  Rather, in a federal statute:

Congress expressly contemplated, and indeed encouraged, state participation in [aquatic nuisance species] prevention measures. We would lose our constitutional bearings if we were to hold that the Commerce Clause, in its dormancy, strikes down state regulation that Congress, in actively exercising its power under the Clause, expressly contemplated.

The court finished its decision by simply stating:

Michigan, for undisputedly legitimate reasons, has enacted legislation of a type expressly contemplated by Congress. We have no basis to disrupt the result of those democratic processes.

This is yet another legal victory in the fight to stop invasive species nationwide.  With this federal decision, it’s now clearly established that states have the authority to take legal action to control ballast water pollution.  Other recent court decisions have established that ballast water pollution is subject to the federal Clean Water Act and that states have a legal obligation to protect their water from invasive species.  Together, these cases should clear the way for strong regulatory action in the next year to finally slam the door shut on the spread of invasive species in the Great Lakes.

Regulatory action needed now to stop the spread of VHS into Lake Superior

A new map (click here to open it, sorry I can't display it in this post), produced by Geoff Maas of the Minnesota Center for Environmental Advocacy, makes frighteningly clear why we need immediate action to stop the unregulated discharge of ballast water from spreading invasive species in the Great Lakes.  Since 2003, the invasive fish disease Viral Hemorrhagic Septicemia (VHS) has spread through four of the five Great Lakes, with only Lake Superior still unharmed.  The map shows a chronology of the spread of VHS and the most significant “ballast water donor” and “ballast water receiver” ports.  Stopping the spread of VHS into Lake Superior is a major concern for the Minnesota Center for Environmental Advocacy in its ongoing litigation to force the state to regulate ballast water discharges.  President-elect Obama has also pledged a “zero tolerance policy for invasive species” which can be fulfilled by directing the EPA to regulate ballast water discharges and stop the spread of invasive species immediately.