Wednesday, October 26, 2011

Back To The Supreme Court On Asian Carp Issue

Oct 26: Michigan Attorney General Bill Schuette announced he has filed a request for appeal with the United State Supreme Court to review a U.S. Court of Appeals decision that denied the request of five Great Lakes states for an immediate injunction requiring a U.S. Army Corps of Engineers study on ecological separation to be greatly sped up and the installation of nets to stop the advancement of Asian carp toward Lake Michigan. Michigan, Minnesota, Ohio, Pennsylvania and Wisconsin originally filed the suit in July 2010 against the U.S. Army Corps of Engineers and Chicago Water District in Federal court. Schuette said, "We need to close the Asian carp superhighway, and do it now. Time is running out for the Great Lakes, and we can't afford to wait years before the federal government takes meaningful action."

    On August 24, 2011, the U.S. Court of Appeals for the 7th Circuit in Chicago issued a ruling on the preliminary injunction request concluding that Michigan's lawsuit had "a good or even substantial likelihood of success on the merits of their public nuisance claim." [See WIMS 9/6/11]. Despite the recognition of the real threat posed by Asian carp, the Court denied the states' request. The states then decided to appeal. Schuette's office today submitted a Petition for a Writ of Certiorari also signed by the attorneys general of Minnesota, Ohio, Pennsylvania, and Wisconsin. The petition asks the U.S. Supreme Court to overturn the 7th Circuit decision and order the following:
  • Require the U.S. Army Corps of Engineers to install block nets in the Little Calumet and Grand Calumet rivers, two open pathways between the Mississippi River and Great Lakes basins that are vulnerable to Asian carp invasion; and
  • Require the U.S. Army Corps of Engineers to expedite the completion of its study of permanent ecological separation between the Great Lakes and Mississippi River basins, so that the part of the study focused on the Chicago Area Waterway is completed within 18 months, not five years. 
    The filing with the Supreme Court poses two questions to be decided as follows: "This multi-sovereign dispute involves the imminent invasion of Asian carp into the Great Lakes ecosystem. Although the Seventh Circuit Court of Appeals concluded that catastrophic harm has a "good" or "perhaps even a substantial" likelihood of occurring, Pet. App. 4a–5a, it affirmed the district court's denial of even the plaintiffs' most modest requests for injunctive relief. The Seventh Circuit's opinion raises two questions for this Court's review: 1. Whether a request for multiple types of preliminary-injunctive relief requires a balancing of harms with respect to each form of relief requested[; and] 2. Whether a party's statement that it is 'considering' implementing the relief requested in a motion for injunction is a ground for denying the injunction."
    On April 26, 2010, The U.S. Supreme Court for the third time declined to address the debate between Great Lakes states on issues and actions necessary to control the spread of Asian Carp into the Lake Michigan and the other Great Lakes [See WIMS 4/26/10].
    Schuette noted a recent study commissioned by the U.S. Army Corps of Engineers and conducted by independent scientists at the Center for Aquatic Conservation at the University of Notre Dame identified the Chicago Waterway as a "major pathway" for the spread of invasive species, concluding that "the canal represents a potential highway to environmental havoc for many species that pose a high risk to both the Great Lake and the Mississippi basins."  
    In addition to his ongoing legal efforts to combat the threat of Asian carp, in September 2011, Schuette organized a national coalition of 17 attorneys general who urged Congress to act on a legislative solution to the threat posed by invasive species traveling through the Chicago Waterways. The coalition called on congressional leaders to support the Stop Asian Carp Act, introduced earlier this year by sponsors Representative Dave Camp (R-MI) (H.R.892) and Senator Debbie Stabenow (D-MI) (S.471).  
    Access a release from Attorney General Schuette (click here). Access the 32-page Petition for a Writ of Certiorari (click here). Access the complete opinion from the Seventh Circuit (click here). Access multiple postings on the Supreme Court's consideration of the Asian Carp issue on the WIMS Great Lakes Environment Blog(click here).