After the Supreme Court refused to hear the Great Lakes states’ dispute regarding Asian carp, the states have moved ahead with “Plan B” in the legal battle to protect the lakes from the invasive species threat – a lawsuit against the U.S. Army Corps of Engineers and Metropolitan Water Reclamation District of Greater Chicago in federal district court. Five states - Michigan, Wisconsin, Minnesota, Ohio, and Pennsylvania – filed their joint complaint today in the U.S. District Court for the Northern District of Illinois.
The states’ complaint alleges that U.S. Army Corps of Engineers and Metropolitan Water Reclamation District of Greater Chicago have created a public nuisance by allowing Asian carp to threaten the waters and fisheries of the Great Lakes, a public resource. The complaint further requests that the court review the actions of the Corps of Engineers, a federal agency, pursuant to the Administrative Procedure Act.
The states have requested a preliminary injunction to make the federal and local agencies protect the Great Lakes with “the best available methods to block the passage of, capture or kill bighead and silver carp.” Specific measures demanded include installing physical barriers, closing connecting navigation locks (except in emergency situations), and using fish poison if needed. The complaint further seeks to force the agencies “to develop and implement plans to permanently and physically separate carp-infested waters in the Illinois River basin and the [Chicago Canal] from Lake Michigan.”
The federal government essentially invited this type of lawsuit when it argued that the Supreme Court should not hear the states’ claims, leaving states to pursue claims in lower federal courts instead. The states, led by Michigan, have taken legally sound and aggressive action using well established legal doctrines to protect the Great Lakes from this new threat. Public nuisance claims have long been used to against water pollution, and the same principles could apply to stop the invasive Asian carp, which could devastate the Great Lakes fisheries and causes billions of dollars in damage. With the Obama administration and Congress failing to solve the problem, this lawsuit by the states may be the best hope for protecting the Great Lakes from Asian carp.
Update 1: The states have also filed a motion for preliminary injunction and supporting brief; see also the federal defandants brief opposing the preliminary injunction.
Update 2: Coverage of the new lawsuit in the Detroit News (by John Flesher of the Associated Press) with comments by Nick Schroeck of the Great Lakes Environmental Law Center.