Great Lakes Law

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.
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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