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.