Asian Carp
Last Tuesday, the Supreme Court (”SCOTUS”, for the uninitiated) denied a preliminary injunction sought by a coalition of Great Lakes states against Illinois to close navigation locks in the Chicago Sanitary and Ship Canal in an effort to curb the spread of the Asian Carp, an invasive fish species, into the Great Lakes. Issuing just a one-sentence opinion, SCOTUS denied the injunction while leaving open the possibility of a more thorough evaluation of the situation under Michigan’s petition to reopen a 1920s water diversion case.
The Asian Carp was imported to the United States from China to eat algae in aquaculture operations. The fish is a voracious eater and spread quickly up the Mississippi River to other ecosystems. Along the way, it decimated numerous native populations, including the zebra mussels. The London Times OnLine recently reported, “the carp munch their way through entire species of rival fish and devour 40 percent of their body weight in plankton every day.” As a result, the carp is not only an ecological threat but also a threat to numerous recreational and hobbyist pursuits.
The writers at the Daily Kos are skeptical of Illinois’ commitment to addressing the threat of Asian Carp in the Great Lakes. However, that state has an important economic interest in finding a solution to the Asian Carp’s presence in the CSSC and the Lakes. After all, according the the Daily Kos’ own reports, the Great Lakes fishery is valued at $7 billion per year and the State has an important and long-standing shipping industry, moving more than 14.6 million tons of commodities, valued at more than $1.7 billion worth in 2008, through the Chicago locks in 2008.
An injunction is a legal order or admonishment from the court. It is intended to either prevent an act (a “negative” or “prohibitory” injunction) or to force the performance of an act (”mandatory” injunction) in an effort to prevent a irreparable injury. To be granted injunctive relief, a petitioner must prove 5 things:
(1) The legal remedy is inadequate
(2) A property right or at least a protectable right is involved
(3) Enforcement of the terms of the injunctive relief would be feasible, practicable and effective to vindicate the petitioner’s rights
(4) The hardships, where relevant, balance in the petitioner’s favor, and
(5) No defenses are available
Why, then, did the SCOTUS deny the issuance of this injunction on the same day that researchers announced the presence of Asian Carp environmental DNA in Calument Harbor, on Lake Michigan? U.S. Solicitor General, Elena Kagan, posits that Michigan failed to demonstrate an immediate threat that justified the closing of the locks.
Doesn’t the presence of the DNA signal that the irreparable injury is already occurring? “History has repeatedly demonstrated that once invading species are established, they are virtually impossible to eradicate, so we should be pursuing every possible avenue now to keep these and future threats out of our Great Lakes,” states Terry Quinney, the Provincial Manager of Fish and Wildlife with the Ontario Federation of Anglers and Hunters (O.F.A.H.).
The Court might argue no, not necessarily. After all, the Army Corps of Engineers has controls in place. It has erected electric fish barriers at several points along the CSSC to prevent the carps’ migration into the Lakes. However, the fish likely breached the barriers because the electric current is periodically amped down and is not intended to stop fully matured fish during that time. That might be a problem, especially as these fish can grow up to 70 lbs. And, the barrier is periodically turned off for maintenance. So, yes, the DNA of this invasive species is present in the Lakes. But, the Court does not know if the DNA was from a live or dead fish, or in what numbers the fish is present in the Lakes. It appears that the Court did not deem the danger from the temporarily open locking gates to create an irreparable harm. Hence, its decision to deny the preliminary, or interlocutory, injunction. These types of injunctions are sometimes granted provisionally before a trial to maintain the status quo until the court can hear arguments from both sides and rule on the issue of granting a permanent injunction. Here, the SCOTUS has signalled that it will wait to rule on the matter and feels that its interference is not warranted. Michigan will now have to wait until the Court rules on its petition to have an old water diversion case re-opened to litigate the issue of invasive species.
Posted by Krystyna on February 2, 2010 at 2:10pm.
Tags: Asian Carp, Environmental Law