Late last week, in a 61-page opinion, U.S. District Judge Robert Dow denied the request of Michigan, Minnesota, Ohio, Pennsylvania and Wisconsin to issue a preliminary injunction compelling the United States Army Corps of Engineers and Chicago’s Municipal Water Reclamation District to close the locks on the Chicago Area Waterway System to prevent the spread of Asian carp into Lake Michigan.
The states’ complaint alleged 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 requested that the court review the actions of the Corps of Engineers, a federal agency, pursuant to the Administrative Procedure Act. (For more background on the states’ complaint, see this prior post.)
The states further motioned the court for 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.” NRDC attorney Thom Cmar detailed the key issues and arguments regarding the request for temporary closure of the locks in his prior guest post. (And see also the short commentary and response following Thom’s post by David L. Rieser of McGuireWoods LLP, who represents The Coalition to Save Our Waterways, which as an intervenor in the litigation opposed the States’ request for a preliminary injunction.)
Thom Cmar of NRDC has more analysis of the judge’s decision to keep the locks open and further discusses the need for a long term solution for the Chicago Area Waterway System. As Thom points out, the federal government’s response so far leaves much to be desired:
Judge Dow is correct that there are federal and state agencies working on this… most notably the Army Corps of Engineers. The problem is that the Army Corps is working on this far too slowly, and in the wrong way. Rather than lasering in on bold, effective action to prevent the Asian carp from establishing a population in Lake Michigan, the Corps is conducting a study that they think will take over 5 years and cost over $25 million – and even then, they have not committed to deciding on an option that will fully prevent Asian carp from moving through the CAWS, but only one that will “reduce the risk” of carp getting into the Lake. That’s far from an adequate response, and if the White House or Conges doesn’t step in and provide the Corps with some adult supervision, the Asian carp saga could end up back in court – this time on a legal issue that the Corps is less likely to win.
Judge Dow’s denial of the motion for a preliminary injunction is a major setback in the states’ fight to keep Asian carp out of the Great Lakes. While not a final ruling on the case, it’s clear from the judge’s opinion that the states are not likely to succeed on the merits with the scientific evidence currently available before his court. As Nick Schroeck of the Great Lakes Environmental Law Center wrote in a guest column for the Great Lakes Town Hall:
[T]he Court analyzed the science behind, and legal admissibility of, environmental DNA evidence. The Court was not convinced that eDNA could determine exactly where the fish are, or were, and how many fish might be present in a particular sample area. The eDNA discussion shows the difficulty of litigating a common law public nuisance claim in the “CSI” era. The Court was not convinced that eDNA evidence and the recovery of one or two actual carp (one during the rotenone poisoning last December and one more recently in Lake Calumet), demonstrated an imminent threat to Lake Michigan. This reasoning does beg the question of how many carp are sufficient to meet the threshold. Setting aside the difficulty of actually netting the fish, if ten or twenty Asian carp had been found in the canal over the past few months would that be enough?
Nick further writes about the value of the states’ litigation, even if they don’t succeed before Judge Dow, and puts this litigation into a broader context of protecting the Great Lakes from invasive species:
This fight, however, is worth having. And to the extent that Plaintiffs can increase the federal and state response to the crisis and expedite the completion of the hydrological separation study (which is the real solution to Asian carp and the next invasive species, whatever it may be) this case continues to have importance. For the rest of us who care about the Great Lakes, we must continue to press for action from the White House and Congress. As the legal battle over injunctions and common law public nuisance demonstrates, the current law is, at best, inadequate and we need comprehensive federal legislation attacking aquatic invasive species from all vectors. That coordinated assault on invasive species includes, in my opinion, a frank discussion about the future of all the artificial, manmade, connections to the Great Lakes.