Great Lakes Law

Great Lakes Week in Detroit – IJC Biennial Meeting and more

The International Joint Commission’s Great Lakes Water Quality Biennial Meeting on October 12-14 is anchoring Great Lakes Week Detroit 2011. The Great Lakes Commission and the Healing Our Waters Coalition will also be holding their annual meetings as part of the event, which should draw hundreds of Great Lakes advocates and policy makers to Detroit and the Wayne State University campus.

Pursuant to the Canada-US Great Lakes Water Quality Agreement, the IJC convenes the Biennial Meeting to report on progress toward restoration of the physical, chemical, and biological quality of the waters of the Great Lakes basin ecosystem. Biennial Meeting workshops will focus on key challenges to water quality, including harmful and nuisance algae, aquatic invasive species, beach health, fish consumption, and chemicals of emerging concern. A special plenary session will focus on priorities for 2011-2013, providing the public with an opportunity to comment on IJC plans for future study. As the U.S. and Canada reach the final stage of negotiations regarding an updated Great Lakes Water Quality Agreement, the Biennial Meeting will be a critical opportunity for public participation in Great Lakes governance. 

Registration for the IJC Biennial Meeting is free and open to the public, but you should register in advance, especially if you want to save a seat for the keynote session with former Vice-President Al Gore on Thursday afternoon. For more details on all events, see the IJC’s schedule and the Great Lakes Week detailed agenda.

Oil and Freshwater Don’t Mix: Transnational Regulation of Drilling in the Great Lakes (with a political twist...)

I’ve just published a short article on oil and gas drilling in the Great Lakes - Oil and Freshwater Don’t Mix: Transnational Regulation of Drilling in the Great Lakes, 38 Boston College Environmental Affairs Law Review 303 (2011). The article was presented and published as part of a much larger symposium on the BP Gulf oil blowout and the entire symposium issue is available online. Here’s the abstract:

In the wake of the Gulf oil blowout disaster, there is renewed interest in protecting the freshwater of the Great Lakes from the risks of oil drilling. The region has significant oil resources that would be economically and technologically accessible through drilling in the Great Lakes. The Great Lakes bottomlands and shorelines are subject to the regulatory jurisdiction of two countries—the United States and Canada—and eight American states. While the existing legal regime lacks uniformity, and is characterized by jurisdictional inconsistency and potential for transboundary pollution externalities, oil drilling is mostly prohibited. With strong public support for protecting the Great Lakes, there is an opportunity to further strengthen oil drilling regulation in the Great Lakes through international and domestic law.

The article, and the issue of oil and gas drilling in the Great Lakes, is pretty straight forward. Congress addressed the inconsistency under state law by banning new slant, directional, and offshore oil and gas drilling in 2005 (and had temporary bans beginning in 2001). Canada (Ontario) also bans offshore oil drilling, but allows offshore gas wells and directional drilling of oil wells below the Great Lakes. While we continue to struggle with the policy balance of protecting our oceans versus meeting our oil and energy needs, it’s assuring to know that oil drilling in the freshwater Great Lakes is off the table. Still, the United States and Canada should take a consistent approach to this issue. As a start, last summer over twenty members of the U.S. House of Representatives from the Great Lakes states sent a letter to President Obama, Canadian Prime Minister Stephen Harper, and the International Joint Commission urging a thorough review of this binational issue.

There is also an interesting political back story to the U.S. ban on Great Lakes oil drilling. One of the leading advocates for the federal ban on drilling in the Great Lakes was Rep. Fred Upton of Michigan, who is now Chairman of the powerful Energy and Commerce Committee. While Chairman Upton has been criticized by environmental groups for his “love for Big Oil”, his floor statements on the first Great Lakes oil drilling ban show a more moderate perspective:

"Some say that this is a safe process, slant drilling. Well, I have to say that I am not convinced that the science, in fact, will protect us. No one has ever suggested that the oil perhaps underneath the Great Lakes is an Arab oil field. It will not provide a lot of oil under anyone’s estimation. So why should we take the risk?

I grew up on the shores of Lake Michigan, and I can remember as a young boy in the 1960s and even into the 1970s there in fact had been an oil spill on the southern shore of Lake Michigan, and I will say virtually every day, every day in St. Joe, Benton Harbor, my hometown and along the southern shore of Lake Michigan, anyone that went to the beach got oil from the sand on themselves. I do not think there was a house along the street that did not have a little bottle of Mr. Clean on the kitchen step, which was the only stuff that would take that oil off our clothes, off our shoes, name it.

That smell of Mr. Clean stays with me from this day, from those summer days of always getting oil on our feet....

This is a Great Lakes watershed area that is not like someplace else. When the oil is there, it stays there and it stays there for a long time. I support this amendment. It is bipartisan. For those of us that have districts along the Great Lakes, I think that all of us, I would hope, would support it. After all, we know our Great Lakes area better than just about anybody else."

At least on this issue, Chairman Upton and some of his Republican colleagues from Michigan seemed to follow the precautionary principle and banned slant drilling under the Great Lakes, despite some scientific and technical evidence that such drilling could be done safely. Is it because the Great Lakes’ freshwater supplies drinking water to millions of citizens and Rep. Upton’s district sits on the shores of Lake Michigan? Or because his personal experience made him skeptical of technological fixes for environmental problems? Or did he simply get on board with the public’s overwhelming opposition to Great Lakes oil drilling? I can only speculate, but whatever the reasons, this issue from a decade ago could provide the environmental community in Washington with some lessons for working with Republicans on common goals.

All (Water) Politics Is Local: A Proposal for Resolving Transboundary Water Disputes – Guest Post by Jeff Dornbos

This is the first of two guest posts by Jeffrey Dornbos, an attorney with Warner Norcross & Judd in Holland, Michigan. In addition to his legal background, Jeff also taught environmental science, holds a captain’s license from the U.S. Coast Guard, and is a SCUBA diver. Jeff’s guest posts introduce his two excellent law review articles focusing on management of transboundary water resources - "Capping the Bottle on Uncertainty: Closing the Information Loophole in the Great Lakes-St. Lawrence River Basin Water Resources Compact," 60 Case W. Res. L. Rev. 1211 (2010) and "All (Water) Politics Is Local: A Proposal for Resolving Transboundary Water Disputes," 22 Fordham Envtl. L. Rev. 1 (2011).

Is it better to flood thousands of acres of rich Missouri farmland or a historic Illinois town? The recent decision to blow a hole into a levee and sacrifice Missouri farmland in order to save an Illinois town is a vivid reminder that water resource boundaries don’t always fit neatly within political jurisdictions. Political decisions regarding water resources become even more complicated when watersheds cross international boundaries.

Nearly 30 years ago, the United States and Canada disagreed about a similar difficult choice – whether to efficiently generate power for the city of Seattle or save thousands of acres of pristine Canadian wilderness. The dispute came to be known as the High Ross Controversy. Predictably, the choice looked different from each side of the border. Surprisingly, however, the resolution of the controversy was hailed as a success by both the U.S. and Canada. That resolution was a treaty, signed on April 2, 1984 by representatives of both countries, in which the U.S. agreed not to raise the height of the dam in exchange for a long term supply of power from Canada. 

The most interesting aspect of the settlement was not the result, however, but the process. In this case, much of the negotiating occurred between representatives of Seattle and British Columbia, rather than higher level officials from Ottawa and Washington D.C. A negotiator involved in the process recalled that the Canadian and U.S. governments told the local officials to figure it out and then come back and tell them the solution. They did just that, and in the letter of transmittal, President Reagan described the treaty as “constructively and ingeniously settled.”

The High Ross Controversy illustrates the potential advantages of using the boundaries of the watershed at issue to help dictate the appropriate stakeholders who should be involved in resolving disputes. This principle is often referred to as the “watershed approach.” The EPA outlines three guiding principles to this approach: getting those most directly affected by decisions involved in the decision making, focusing on the geographic boundaries of the water body, and basing decisions on strong science and data. 

As I outline in my article All (Water) Politics Is Local: A Proposal for Resolving Transboundary Water Disputes, 22 Fordham Envtl. L. Rev. 1 (2010), I think that transboundary water agreements, following this approach, should include a rebuttable presumption that negotiations over transboundary water disputes begin with regional committees organized at the “lowest” appropriate hydrological level. Doing so would strengthen the existing focus on long-term cooperation, accurate data gathering, and public participation that exists in agreements such as the Berlin Rules, the Rio Declaration, and the Watercourses Convention. It would also be consistent with the International Joint Commission’s recommendation to establish “ecosystem-based international watershed boards from coast to coast to prevent and resolve transboundary environmental disputes.” While not a perfect solution, the presumption might also help better align the jurisdiction of political institutions with the boundaries of water resources to help anticipate and manage the need to make difficult choices such as choosing between rich farmland and historic towns.

Australian law school dean to speak at Wayne Law on protecting whales under international law

Next week, Wayne Law’s Program for International Legal Studies is honored to host a public lecture by Natalie Klein, dean and professor at Macquarie Law School in Sydney, Australia. Dean Klein will be speaking on "Protecting Whales under International Law: Australia's case against Japan before the World Court." The event is on Wednesday, March 23 from 12:15 - 1:30 pm in the law school’s Partrich Auditorium (lunch will be provided).

Dean Klein teaches and researches in various areas of international law, with a focus on law of the sea and international dispute settlement. She is the author of Dispute Settlement and the UN Convention on the Law of the Sea (Cambridge University Press, 2005) and regularly provides advice, undertakes consultancies, and interacts with the media on law of the sea issues. Prior to joining Macquarie Law School, Dean Klein was counsel to the Government of Eritrea and a consultant in the Office of Legal Affairs at the United Nations. This should be a great event with a leading international expert in the field. See the online event page for more info. 

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. 

Wayne Law, Windsor Law, and the Great Lakes Environmental Law Center launch the first transnational environmental law clinic in North America

Wayne Law and Windsor Law, working in partnership with the Great Lakes Environmental Law Center, have formally announced the launch of the first transnational environmental law clinic in North America. This is a tremendous accomplish for all the institutions involved and for the region as a whole. The new transnational partnership will allow students from both schools to gain practical experience working on US-Canadian environmental issues such as energy development in the Great Lakes. It will also give the Great Lakes Environmental Law Center the legal resources to effectively and strategically protect the Great Lakes from threats such as invasive species on both sides of the border. Nick Schroeck, the Great Lakes Environmental Law Center’s Executive Director, and Prof. Marcia Valiante of Windsor Law, will be directing this new program. For more details, see the joint announcement and recent coverage in the Windsor Star and Detroit Legal News.

Update: Fantastic coverage from Michigan Lawyers Weekly 

Oil and Freshwater Don’t Mix: Transnational Regulation of Drilling in the Great Lakes

I've posted a new article on oil and gas drilling in the Great Lakes, examining the existing laws and policies and offering some pragmatic recommendations for reform. The article was presented at the symposium “Learning from Disaster: Lessons for the Future from the Gulf of Mexico” hosted by the Environmental Affairs Law Review of Boston College Law School last November. The article is titled "Oil and Freshwater Don’t Mix: Transnational Regulation of Drilling in the Great Lakes" and the citation is Boston College Environmental Affairs Law Review __ (Forthcoming, Issue 2, 2011). (Download the full article here.) The abstract:

In the wake of the Gulf oil blowout disaster, there is renewed interest in protecting the freshwater of the Great Lakes from the risks of oil drilling. The region has significant oil resources that would be economically and technologically accessible through drilling in the Great Lakes. The Great Lakes bottomlands and shorelines are subject to the regulatory jurisdiction of two countries – the United States and Canada – and eight American states. While the existing legal regime lacks uniformity and is characterized by jurisdictional inconsistency and potential for transboundary pollution externalities, oil drilling is mostly prohibited. With strong public support for protecting the Great Lakes, there is an opportunity to further strengthen oil drilling regulation in the Great Lakes through international and domestic law.

 

 

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.

Addressing urban and agricultural runoff pollution in the Great Lakes Water Quality Agreement

Urban and agricultural runoff (known legally as non-point pollution) is the most significant source of pollution in the Great Lakes.  As the United States and Canada are considering revisions to the Great Lakes Water Quality Agreement, addressing runoff pollution should be a top priority.  Carrol Hand, a law student at Tulane, worked with the Great Lakes Environmental Law Center to develop a white paper on non-point pollution and the Great Lakes Water Quality Agreement.  Carrol brings significant experience and expertise to this project, having worked with NOAA’s Great Lakes Environmental Research Lab, the U.S. EPA, and the Great Lakes Institute for Environmental Research at the University of Windsor (where she also earned a graduate degree).  Carrol’s white paper is available online, and she provided the following guest post as an introduction to the topic:

Changes in the urban and agricultural landscape of the Great Lakes have resulted in an increased threat to the water quality of the lakes.  Pollution entering the Great Lakes comes from both ‘point sources’ and ‘non-point sources.’  Point sources are more easily identified and managed, since they are limited to a single location like an oil refinery, industrial factory, or municipal wastewater treatment plant.  In contrast, non-point source pollution (also known as runoff pollution) comes from a variety of diffuse sources which are difficult to identify.  Consequently, the overall success at controlling non-point source pollution has been low, so much so that the EPA considers it “the most important remaining source of water pollution” in the Great Lakes Basin.

In the Great Lakes region, non-point sources are responsible for 76% of the pollution in the water.  One of the primary effects of that pollution is eutrophication, due to excessive amounts of phosphorus and nitrogen.  Eutrophication results in the growth of nuisance algae (such as cyanobacteria), which can lead to fish kills, foul odors, and undrinkable water.

Traditionally agriculture has been recognized as a primary cause of non-point pollution, particularly since urban areas only account for around 5% of the land in the continental United States.  More recently it has been acknowledged that urban sources can play a much larger part.  In the lower Great Lakes (dominated by the Corn Belt) non-point source pollution does come primarily from agricultural sources, but in the upper Great Lakes non-point pollution comes primarily from forestry and urban sources.  Agricultural non-point pollution comes primarily from fertilizer and manure, while in contrast much of the urban non-point source pollution comes from nutrients, sediment and bacteria that find their way into the Great Lakes through stormwater runoff from streets, parking lots, lawns, driveways, and roofs. In addition to pollutants picked up from the land, pollutants (nutrients in particular) that are deposited from the atmosphere also find their way into the waters of the Great Lakes.  Atmospheric deposition is one of the largest non-point sources of nitrogen deposited in the lakes, specifically coming from gases released from agriculture and the burning of fossil fuels.

In response to concerns about Great Lakes water quality, the United States and Canada entered into the Great Lakes Water Quality Agreement in 1972 with a commitment “to restore and maintain the chemical, physical and biological integrity of the Great Lakes Basin ecosystem.”  However, the Great Lakes Water Quality Agreement has failed to significantly limit non-point pollution in the Great Lakes due to a lack of accountability and enforcement mechanisms.  To fulfill its promise, the Great Lakes Water Quality Agreement must be amended to substantively address non-point pollution and provide the legal and policy tools to make the controls effective.

The Great Lakes are coming close to a turning point.  Increased urbanization throughout the basin has resulted in a substantial growth of surface area that is impermeable to rainwater and runoff.  Consequently, nutrients, pathogens and sediment, all of which are being produced in increasingly large volumes, are transported into the lakes in greater amounts.  Agriculturally, global market forces are moving farming practices away from small family farms towards large, intensive operations such as confined animal feeding operations.  Better controls need to be put into place to handle non-point source pollution, or the condition of our Great Lakes may take a serious turn for the worse.

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.

Canadian Feds propose ban on bulk water removals from transboundary waters

Last week, the Canadian federal government proposed legislation to ban bulk water removals from “transboundary waters” – meaning waters that cross the U.S.-Canada boundary.  To explain the legislation and how it fits within Canada’s other water protection efforts and challenges, Professor Marcia Valiante of the University of Windsor Faculty of Law generously agreed to author the following the guest post.  Prof. Valiante is a leading expert on Canadian environmental law with a special focus on water protection and the Great Lakes.  She is a member of the International Joint Commission’s Great Lakes Science Advisory Board and active in environmental protection issues regarding the Detroit River.  I had the pleasure of co-teaching a course with Prof. Valiante on U.S.-Canadian transboundary environmental law a few years ago and continue to rely on her expertise on issues north of the border.  From Prof. Valiante:

On May 13, Lawrence Cannon, the federal Minister of Foreign Affairs, introduced a bill into the House of Commons, to be called the “Transboundary Waters Protection Act.”  This bill would amend the International Boundary Waters Treaty Act, the legislation that implements Canada’s obligations under the 1909 Boundary Waters Treaty with the United States.  The Bill, C-26, would also make a minor amendment to the International River Improvements Act.  Minister Cannon claims that this fulfills a promise made by the Harper government in its 2008 Throne Speech.

Bill C-26 would primarily do two things.  First, it would expand the existing prohibition on water removals from boundary waters to include “transboundary waters.”  Second, the Bill would add inspection powers and significantly increase the penalties for violations of the IBWTA. 

In 2002, the IBWTA was amended to prohibit bulk water removals from the basins of “boundary waters” – including in particular the Great Lakes.  This was one of three actions taken by the federal government commencing in 1999 to respond to the well-known Nova Group proposal to remove water from Lake Superior by tanker and ship it to Asia.  (The other actions were to refer the issue to the International Joint Commission and to pursue a federal-provincial accord.)  Bill C-26 expands application of the ban on removal beyond waters that form the Canada-U.S. boundary to include waters that cross the boundary.  The Bill defines “transboundary waters” to include waters set out in a schedule.  This schedule is attached to the Bill and is an extensive list – from large river systems such as the Yukon, Red and Columbia Rivers to smaller creeks and streams.   

The inspection and enforcement sections bring the IBWTA into line with the enforcement provisions of other federal environmental statutes, which were strengthened in the Environmental Enforcement Act in June of 2009.

Minister Cannon claims that passage of Bill C-26 is necessary to fill an important gap in the protection of Canadian waters being eyed for export.  What it accomplishes is actually fairly modest.  For constitutional reasons, the Bill does not purport to control all waters in Canada that may be vulnerable to export, but stays safely within the narrow scope of water bodies referred to in the Boundary Waters Treaty.   This narrow scope explains the sponsorship of the Bill by the Foreign Affairs Minister, rather than by the Minister of Environment. 

Protection for all other Canadian waters remains in the hands of provincial governments, most of which have put in place prohibitions on bulk removal either from major drainage basins or from the province itself.  Ontario and Quebec, of course, have legislation in place that implements the provisions of the 2005 Great Lakes St. Lawrence River Basin Sustainable Water Resources Agreement, entered into with the eight Great Lakes States. 

The 2008 Throne Speech promise referred to the need to prohibit the “export” of water.  For reasons relating to international trade obligations that were debated at length at the time of the 2002 IBWTA amendments, it is not surprising that there is no reference in the Bill itself to the “export” of water.   The focus instead is on “bulk removal.” 

Bulk removal means removal from the water body and the taking of that water outside its drainage basin “by any means of diversion, including by pipeline, canal, tunnel, aqueduct or channel; or by any other means by which more than 50,000 L of water are taken outside the water basin per day.”   It does not include the taking of a manufactured product containing water, including bottled water or other beverages, outside a water basin.  Also excluded is water used in vehicles or for a “non-commercial project” for firefighting or humanitarian purposes.   

Under the IBWTA, bulk removal is deemed, “given its cumulative effects on boundary waters and on transboundary waters that flow to the United States, to affect the natural level or flow of those waters on the other side of the international boundary.”  In other words, bulk removal is deemed to violate the Boundary Waters Treaty. 

It is not clear why this Bill is coming forward now.  The Minister admitted there was no urgency or imminent threats to divert or export Canadian waters.  There has been fairly consistent opposition party and NGO pressure on the federal government to do more to protect water, but there has also been competing advice from several conservative think tanks to allow water export as a potentially lucrative industry for Canada.  The government appears to have rejected that advice.  Minister Cannon, in introducing the Bill, said “This important legislation makes it clear that we are not in the business of exporting our water… Canadian water is not a commodity.  It is not for sale.”

Bill C-26 does fill a gap in the legislation, but is not ambitious either constitutionally or environmentally.  It is perhaps an easy way for the government to improve its rather dismal environmental image.  It will not antagonize any provinces by stepping on their jurisdiction and the criticisms of the amendments are manageable – in particular the continuation of an exemption for bottled water, which is in the existing IBWTA provision and in the Great Lakes Agreement.  However, as some critics have pointed out, bulk water removal is not the most pressing issue facing Canadian waters; there is a need for an overhaul of federal water law – and this isn’t it. 

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.

Public participation and governance under the Great Lakes Water Quality Act

After years of delay, the United States and Canada finally agreed to begin the process of updating the Great Lakes Water Quality Agreement last year, with an announcement by Secretary of State Hillary Clinton in June 2009.  Updating the Great Lakes Water Quality Agreement is long overdue, as many new threats and concerns (invasive species, non-point pollution, toxic and pharmaceutical residues in drinking water, etc.) have emerged since the last revision in 1987.  Further, there have been new calls to make the Great Lakes Water Quality Agreement more meaningful with provisions for enforcement and accountability.  Environmental advocates were hopeful that a new, modern Great Lakes Water Quality Agreement would be developed, drawing heavily on scientific expertise and public participation.  However, those hopes are turning into frustration as the governments move forward in a low-profile, rushed process that gives the public and scientists little ability to shape the result.

The public was given only a month’s notice to submit comments on “governance” for revising the Great Lakes Water Quality Agreement, with comments due earlier this week.  The timing couldn’t be worse, as Great Lakes policy makers and advocates were focused on the Asian carp crises – a disastrous example of the “governance” mess that undermines Great Lakes protection.  In January, over 30 environmental organizations from the United States and Canada sent a letter to the governments demanding a better public participation process for revising the Great Lakes Water Quality Agreement, with the following key steps:

1. Release a draft government position or options paper on governance issues.
2. The release of the draft government position or options paper should set off a 60-day public comment period.
3. Once the governments have negotiated draft language on governance, release it again for a public comment period.
4. For the “issues” consultations, follow a process similar to recommendations 1-3, with the release of a draft position or options paper followed by a 60-day public comment period followed by another opportunity for comment after the governments have completed their first round of negotiations on the topic.
5. Compile a web-posted summary of comments received from public input at each stage of the consultations.
6. Release a final draft of the complete revised Great Lakes Water Quality Agreement for comment prior to completing negotiations and hold public hearings in both countries on this draft.

As of this week, the governments have failed to respond to the concerns for more sensible public participation.  Even with minimal opportunity for public participation, environmental advocates have submitted comments on improving governance under the Great Lakes Water Quality Agreement.  In their Preliminary Comments and Recommendations on Governance Issues for Consideration During the 2010 Renegotiation of the Great Lakes Water Quality Agreement, over 30 organizations detail issues ranging from scope to implementation.  NRDC has submitted its own comments, mostly consistent with the coalition recommendations.  These comments are a good starting point, but a problem as complex as Great Lakes governance deserves a more meaningful process with far better opportunities for public participation. 

Special edition of Wayne Law Review commemorates Boundary Waters Treaty Centennial

Last year, to commemorate 100 years of the Boundary Waters Treaty and its prospects for the future, the Wayne Law Review hosted a symposium featuring most of the International Joint Commission members, leading academics, and cutting-edge practitioners.  The Wayne Law Review has now published a special edition with articles, commentary, and speeches from the symposium participants – all available free online here.

The special issue (Volume 54, Issue 4) includes:

• Introduction (The Centennial of the Boundary Waters Treaty: A Century of United States–Canadian Transboundary Water Management) - Noah D. Hall
• Keynote Opening Address - The Rt. Hon. Herb Gray, P.C., C.C., Q.C.
• The Boundary Waters Treaty and Canada-U.S. Relations - Allen I. Olson
• The Boundary Waters Treaty and International Environmental Law - Pierre Trepanier
• The Boundary Waters Treaty and Protecting Freshwater Resources in North America - Frank Ettawageshik
• The Boundary Waters Treaty and Protecting Freshwater Resources in North American - Dr. Sam Speck
• The Future of the Boundary Waters Treaty: Perspectives from NGOs and Business - Irene B. Brooks
• The Boundary Waters Treaty and Canada-U.S. Relations in Abundance and Scarcity - B. Timothy Heinmiller
• How Green is My Treaty? Ecosystem Protection and the "Order of Precedence" under the Boundary Waters Treaty of 1909 - Marcia Valiante
• Using the Boundary Waters Treaty for the 21st Century: Revitalizing the Great Lakes Governance Regime - Lee Botts & Paul Muldoon
• The Great Lakes and International Environmental Law: Time for Something Completely Different? - Bradley C. Karkkainen
• The Boundary Waters Treaty: Ahead of its Time, and Ours - John H. Knox
• The Boundary Waters Treaty: A Public Submision Process Would Increase Public Participation, Accountability, and Access to Justice - Robert V. Wright
• The Boundary Waters Treaty of 1909 as a Model for Interjurisdictional Water Governance - Robert H. Abrams
• The International Joint Commission and Great Lakes Diversions: Indirectly Extending the Reach of the Boundary Waters Treaty - A. Dan Tarlock
• Polycentrism and the International Joint Commission - Itzchak E. Kornfeld

President Obama will nominate Lana Pollack for the International Joint Commission

The White House just announced that President Obama will nominate Lana Pollack as a Commissioner on the International Joint Commission.  I’ve known Pollack for many years, going back to her days as a Michigan state senator representing Ann Arbor.  I worked with her while she was president of the Michigan Environmental Council, which she grew into the most effective environmental advocacy organization in the state.  She is one of the most knowledgeable, experienced, and savvy environmental advocates in the region (her full bio is included in the White House announcement).  For what it’s worth, I publicly recommended Pollack for the IJC almost a year ago, and am thrilled to see her nomination for this important position. 

The IJC has some very pressing issues before it, and Pollack would be ready to jump right in with her experience in environmental policy and advocacy.  Secretary of State Hillary Clinton has committed to updating the Great Lakes Water Quality Agreement, and that should be one of Pollack’s priorities on the IJC.  The IJC could help facilitate a solution to the Asian carp crisis, providing both scientific research and a forum to negotiate a long term solution.  The IJC is currently taking public comments on its lake levels study, assessing the extent that climate change, dredging, water use, and natural causes have lowered Great Lakes water levels.  And there are many other transboundary environmental issues between the United States and Canada (such as the impact of mining and refining Canadian tar sands for oil production) that Pollack and the IJC could help solve.  Congratulation Lana, we're lucky to have you. 

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.