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Thom Cmar’s Blog

Taking Asian Carp to the Supreme Court

Thom Cmar

Posted December 22, 2009

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Asian carp?  You got served.

That’s right – the big, hungry invasive fish that are threatening to eat their way through the Great Lakes are going to court.  In fact, straight to the top – we’ll see the Asian carp in the United States Supreme Court – and quickly.

The State of Michigan filed papers yesterday to re-open a set of very old cases against the State of Illinois, the Metropolitan Water Reclamation District of Chicago (MWRD), and the Army Corps of Engineers. When one state files a lawsuit against another state, that case goes directly to the Supreme Court. 

The original cases centered on diversion of billions of gallons of Lake Michigan water to reverse the flow of the Chicago River (now called the Chicago Diversion).  According to Michigan’s filing, the conditions under which the Chicago Diversion is now maintained “constitute a public nuisance” by creating a passageway through which invasive species, such as the voracious Asian carp, can move into the Great Lakes from the Mississippi River watershed (or vice versa). Michigan has asked the Supreme Court to order temporary closure of the navigational locks and connecting channels between the Chicago canal system and Lake Michigan.  They’ve also asked the Court to order a permanent severance of the link between the two ecosystems.

Both of these steps – the emergency remedy to prevent Asian carp from having a clear path to the Lakes, and a process based on facts and science to solve the underlying problem permanently – are urgently needed to protect the Great Lakes.  They also raise many of the same issues that the Supreme Court has been considering in the Chicago Diversion cases since their inception in 1925.

When the Chicago Diversion was first built, it was both an engineering marvel and a response to a public health emergency.  Not only did the Chicago Sanitary and Ship Canal move water pollution away from Lake Michigan and the thirsty city’s drinking water, it also connected the Great Lakes with the Mississippi River basin, for the first time allowing rapid movement of goods through Chicago.

For the Great Lakes states (including Michigan) that challenged the Chicago Diversion in 1925, however, the Diversion was also a direct threat to the ecology and economy of the Great Lakes.  So much water was being pulled out of Lake Michigan that lake levels were dropping in the entire Great Lakes system.  In its first major ruling in the case, then captioned Wisconsin v. Illinois, in 1929, the Supreme Court (writing through Chief Justice William Howard Taft) recognized that “damage due to the diversion at Chicago relates to navigation and commercial interests, to structures, to the convenience of summer resorts, to fishing and hunting grounds, [and] to public parks and other enterprises” throughout the Great Lakes region.

The Supreme Court thus ruled in favor of Michigan and the other Great Lakes states in 1929, but it declined to order a complete shutdown of the Chicago Diversion at that time.  Rather, the Supreme Court recognized that the Diversion had long since been completed, and that Chicago had come to rely upon it to both manage its sewage and move goods through the region.  So the Court ultimately allowed the Diversion to continue, but only under a negotiated Court order that strictly regulates the amount of water that Illinois can withdraw from Lake Michigan.  These cases have been periodically re-opened over the years, as new disputes and changing circumstances have required the Court to make changes to its original decree.

A lot can happen in 80 years.  Today, the Chicago Diversion is threatening the Great Lakes not because of the amount of water that is being withdrawn from Lake Michigan, but because the Chicago canal system has become a highway for “living pollution” that now threatens the drinking water supply that it was intended to protect.  Asian carp are just the latest in a long line of invasive species that have used the Chicago canal system to move between the Mississippi River and the Great Lakes.  But ecologists and government agencies predict that their effect on the Lakes could be catastrophic:  potentially as bad as, or even worse than, that of the infamous zebra mussel.  For an ecosystem that has already been severely damaged by invasive species, Asian carp could be the death knell.

That’s why Michigan’s action yesterday is so important.  Taking Asian carp to the Supreme Court should be the wake-up call that forces Illinois, MWRD, and the Army Corps of Engineers to finally take the urgent steps that are needed to stave off this threat.  As my colleague Henry Henderson has described it, up until now the response to the rapid advance of the Asian carp toward Lake Michigan has been a “slow motion tragedy.”  We’ve known they are coming toward the Great Lakes, and we know how devastating it will be if we allow them to get in.  But the agencies responsible for dealing with this threat have given us only an electric fence that doesn’t work, and other half-measures.  No one in the public realm has shown the kind of bold, creative, responsible leadership that we have needed to face this challenge.

Although Chicago still uses its Sanitary and Ship Canal to move both sewage and goods, a permanent disconnection of the canal system from Lake Michigan could actually be good for Chicago if it is turned into an opportunity to make long-needed investments in upgrading this 19th Century infrastructure.  It is long past time for MWRD to upgrade its sewage treatment and begin disinfecting the human waste that it dumps into the canal system.  And Chicago’s once vaunted transportation system has long needed an overhaul to a more sustainable, modern, and efficient network.

It is time to summon the spirit of innovation and reinvention that led to the Chicago Diversion to examine how fixing it can untangle our railroads, modernize our woeful water system, and keep the carp at bay.

In the meantime, though, Asian carp will be flopping into the Supreme Court, with a whole menagerie of federal and state officials trailing behind them.  We urge the Supreme Court to grant Michigan’s petition for more urgent and effective actions to protect the Great Lakes.

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