Tuesday, September 6, 2011

State of Michigan v. United States

Aug 24: In the U.S. Court of Appeals, Seventh Circuit, Case No. 10-3891. Appealed from the United States District Court for the Northern District of Illinois, Eastern Division. In this important 57-page decision regarding Great Lakes States' continuing attempt to stop the spread of Asian Carp to the Great Lakes, the Appeals Court upheld the district court's ruling denying preliminary relief. However, importantly, unlike the lower court which said the "plaintiffs had shown only a minimal chance of succeeding on their claims"; the Appeals Court said "plaintiffs presented enough evidence at this preliminary stage of the case to establish a good or perhaps even a substantial likelihood of harm." The Appeals Court also agreed with plaintiffs that, "If the invasion comes to pass, there is little doubt that the harm to the plaintiff states would be irreparable." The case involves the State of Michigan, et al and the Grand Traverse Band of Ottawa and Chippewa Indians versus the U.S. Army Corps of Engineers and the City of Chicago, et al.
    As explained by the Appeals Court, "Ambitious engineering projects that began at the time that the City of Chicago was founded have established a waterway in northeastern Illinois that connects Lake Michigan to the Mississippi watershed. (Additional links between the Mississippi and the Great Lakes exist elsewhere, from northern Minnesota to New York.) The system of canals, channels, locks, and dams, with which we are concerned, known today as the Chicago Area Waterway System (or CAWS, as the parties call it in their briefs), winds from the mouth of the Chicago River and four other points on Lake Michigan to tributaries of the Mississippi River in Illinois. The navigable link has been a boon to industry and commerce, and it supports transportation and recreation. Public health crises that once were common because the Chicago River emptied the City's sewage into the lake -- the City's freshwater supply – vanished thanks to the Chicago Sanitary and Ship Canal, which reversed the flow of the Chicago River so that it now pulls water from the lake, into the CAWS, and down toward the Mississippi. During heavy rains and seasonal high waters in the region, the CAWS is used to control flooding.
    "This effort to connect the Great Lakes and Mississippi watersheds has not been without controversy. At the turn of the 20th century, Missouri sued in the Supreme Court to stop Illinois from opening the Sanitary and Ship Canal. An opinion by Justice Holmes rejected Missouri's challenge; the Court concluded that the state had not presented enough evidence to establish that the flow of sewage toward the Mississippi would create a public nuisance. Missouri v. Illinois, 200 U.S. 496 (1906); see also Missouri v. Illinois, 180 U.S. 208 (1901). Several years later a broader fight erupted among the states bordering the Great Lakes, and the Court began to issue decrees setting the maximum rate at which Illinois may divert water away from Lake Michigan and into the CAWS. E.g., Wisconsin v. Illinois, 449 U.S. 48 (1980); Wisconsin v. Illinois, 388 U.S. 426 (1967); Wisconsin v. Illinois, 311 U.S. 107 (1940); Wisconsin v. Illinois, 278 U.S. 367 (1929). Nor has opening a pathway between these bodies of fresh water come without costs. This appeal requires us to consider one of those costs: the environmental and economic harm posed by two invasive species of carp, commonly known as Asian carp, which have migrated up the Mississippi River and now are poised at the brink of this man-made path to the Great Lakes. The carp are voracious eaters that consume small organisms on which the entire food chain relies; they crowd out native species as they enter new environments; they reproduce at a high rate; they travel quickly and adapt readily; and they have a dangerous habit of jumping out of the water and harming people and property.
    "In an attempt to stop the fish, Michigan, Minnesota, Ohio, Pennsylvania, and Wisconsin, all states bordering the Great Lakes, filed this lawsuit against the U.S. Army Corps of Engineers (the Corps) and the Metropolitan Water Reclamation District of Greater Chicago (the District), which together own and operate the facilities that make up the CAWS. The plaintiff states allege that the Corps and the District are managing the CAWS in a manner that will allow invasive carp to move for the first time into the Great Lakes. The states fear that if the fish establish a sustainable population there, ecological disaster and the collapse of billion-dollar industries that depend on the existing ecosystem will follow. They say that the defendants' failure to close down parts of the CAWS to avert the crisis creates a grave risk of harm, in violation of the federal common law of public nuisance, see American Electric Power Co., Inc. v. Connecticut, 131 S. Ct. 2527 (2011), and they advance a related claim against the Corps based on the Administrative Procedure Act (APA), 5 U.S.C. § 702. The states asked the district court for declaratory and injunctive relief and moved for a preliminary injunction that would require the defendants to put in place additional physical barriers throughout the CAWS, implement new procedures to stop invasive carp, and expedite a study of how best to separate the Mississippi and Great Lakes watersheds permanently. Other parties intervened to protect their interests -- the Grand Traverse Band of Ottawa and Chippewa Indians on the side of the plaintiffs, and the City of Chicago, Wendella Sightseeing Company, and the Coalition to Save Our Waterways as defendants. The district court denied the motion for a preliminary injunction, and the states appealed immediately. See 28 U.S.C. § 1292(a)(1).
    "We conclude that the court's decision to deny preliminary relief was not an abuse of discretion. Our analysis, however, differs in significant respects from that of the district court, which was persuaded that the plaintiffs had shown only a minimal chance of succeeding on their claims. We are less sanguine about the prospects of keeping the carp at bay. In our view, the plaintiffs presented enough evidence at this preliminary stage of the case to establish a good or perhaps even a substantial likelihood of harm – that is, a non-trivial chance that the carp will invade Lake Michigan in numbers great enough to constitute a public nuisance. If the invasion comes to pass, there is little doubt that the harm to the plaintiff states would be irreparable. That does not mean, however, that they are automatically entitled to injunctive relief. The defendants, in collaboration with a great number of agencies and experts from the state and federal governments, have mounted a full-scale effort to stop the carp from reaching the Great Lakes, and this group has promised that additional steps will be taken in the near future. This effort diminishes any role that equitable relief would otherwise play. Although this case does not involve the same kind of formal legal regime that caused the Supreme Court to find displacement of the courts' common-law powers in American Electric Power, on the present state of the record we have something close to it. In light of the active regulatory efforts that are ongoing, we conclude that an interim injunction would only get in the way. We stress, however, that if the agencies slip into somnolence or if the record reveals new information at the permanent injunction stage, this conclusion can be revisited."
    The Appeals Court indicated in its concluding remarks, "We take very seriously the threat posed by the invasive species of carp that have come to dominate parts of the Mississippi River basin and now stand at the border of one of the most precious freshwater ecosystems in the world. Any threat to the irreplaceable natural resources on which we all depend demands the most diligent attention of government. As the case proceeds, the district judge should bear in mind that the risk of harm here depends upon both the probability of the harm and the magnitude of the problem that would result. In the end, however, the question whether the federal courts can offer meaningful equitable relief – either preliminary or permanent -- to help abate a public nuisance in the face of agency action is factual in nature. It depends on the actual measures that the agencies have implemented already and those that they have committed to put in place going forward. Our ruling today is tied to our understanding of the current state of play. We recognize that the facts on the ground (or in the water) could change. The agencies currently working hard to solve the
carp problem might find themselves unable to continue, for budgetary reasons, because of policy changes in Washington, D.C., or for some other reason. If that happens, it is possible that the balance of equities would shift. Similarly, new evidence might come to light which would require more drastic action, up to and including closing locks on Lake Michigan for a period of time. If either situation comes to pass, then the district court would have the authority to revisit the question whether an exercise of its equitable powers is warranted, taking into account the principles we have discussed in this opinion. As things stand now, however, preliminary relief is not appropriate. The district court's judgment is affirmed."

    Access the complete opinion (click here). [*GLakes, *Wildlife, #CA7]


GLU On Ontario's Potential "Great Lakes Protection Act"

Sep 5: Ontario's governing Liberal Party released its platform in advance of the October 6 provincial election, promising a Great Lakes Protection Act, if elected. From the Great Lakes–St Lawrence River Basin Sustainable Water Resources Agreement signed by Premier McGuinty in 2005 to the Ontario Water Opportunities and Water Conservation Act of 2010, "Ontario has done a pretty good job of leading efforts that improve Great Lakes health," according to Derek Stack, Executive Director of the bi-national environmental group Great Lakes United (GLU). He said, "Now Ontario is poised to be the first among Great Lakes states and provinces to legislate a Great Lakes Protection Act."

    The platform details an investment of $16 million over four years through a Great Lakes Protection Act. Stack said, "With promises to fund beach clean-up properly implemented, the province can seriously promote Great Lakes health. It's simple, the number one reason people work to protect the Great Lakes is that they use and appreciate the resource. A fund to promote beach clean-up and recreation will help to foster a higher public profile for the Great Lakes in the provincial psyche. While this is a positive step forward, even if it is well-targeted, less than $1M a year per Great Lake is hardly a windfall." 
    GLU indicated in a release that, "The Americans, despite a much bleaker financial outlook at all levels, are investing hundreds of millions of dollars into 'on the ground' actions that restore Great Lakes health, in addition to billions more for infrastructure upgrades. In all fairness, that's primarily a federal contribution. The Canada-Ontario Agreement details that kind of fiscal transfer from the federal government. And that Agreement will need to comply with the regulations set out in the Canada–US Great Lakes Water Quality Agreement currently being renegotiated."
    Access a posted release from GLU (click here). Access the Liberal Party platform (click here).

$6 Million Challenge To Restore Great Lakes & Create Jobs

Aug 23: U.S. EPA announced that the Great Lakes Restoration Initiative (GLRI) is setting aside approximately $6 million for Federal agencies to sign up unemployed workers to implement restoration projects in Federally-protected areas, on tribal lands and in Areas of Concern (AOCs) in the Great Lakes basin. EPA will fund individual projects up to $1 million. To qualify for funding, each proposed project must provide jobs for at least 20 unemployed people. EPA Great Lakes National Program Manager and Region 5 Administrator Susan Hedman said, "These projects will help to restore the Great Lakes and put Americans back to work. In a sense, we will be using these funds to create a small-scale 21st century Civilian Conservation Corps."

    Funded projects will advance the goals and objectives of the GLRI Action Plan, developed by EPA with 15 other Federal agencies in 2010. Projects must provide immediate, direct ecological benefits; be located in areas identified as federal priorities such as national lakeshores or areas of concern; include a detailed budget, and produce measurable results. EPA will award funding for selected projects by the end of September. The Agency said it will provide details on the selected projects as soon as that information is available. EPA noted that the Great Lakes provide some 30 million Americans with drinking water and support a multi-billion dollar economy. 

    According to a release from EPA, the GLRI Action Plan, which covers FY 2010 through 2014, ensures accountability by including measures of progress and benchmarks for success over the next three years. It calls for aggressive efforts to address five urgent priority "Focus Areas" including: Cleaning up toxics and toxic hot spot areas of concern; Combating invasive species;
Promoting near-shore health by protecting watersheds from polluted run-off; Restoring wetlands and other habitats; and,  Tracking progress, education and working with strategic partners.
    Access a release from EPA and link to more information on the GLRI and the Action Plan (click here).