Thom Cmar's Blog: U.S. Law and Policy

Taking Asian Carp to the Supreme Court

2009-12-23T01:08:50Z

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.

Wisconsin vs. Fish Ebola: New rules protect the Great Lakes ecosystem

2009-11-20T17:47:42Z

Door County, Wisconsin is famous for their fish boils. We are talking about massive kettles of Lake Michigan white fish with potatoes, onions and the perfect spices boiling in giant bonfires on the beach. Yum, it's a great tradition that has become central to the area's identity and economy as a tourist magnet. But it's a tradition that has been threatened by invasive species, like alewives and round gobies, which have been crowding out the local fish species for decades. Even scarier is the threat of VHS, viral hemorrhagic septicemia, which has been called "fish ebola" and has already appeared in some of the Great Lakes.

But yesterday, the Wisconsin Department of Natural Resources took a big step to help protect that tradition when they announced new regulations requiring oceangoing vessels to begin treating their ballast water to prevent invasive species from being discharged into the Great Lakes. To date, 65% of the invasive species that have been introduced into the Great Lakes since the Saint Lawrence Seaway opened in 1959 have been attributed to oceangoing ships. This biological pollution takes a massive toll on the Great Lakes economy, costing over $200 million a year.

And so, Wisconsin joins a growing list of states in recognizing that the only effective way to fight invasive species is to keep them out in the first place.

NRDC has been heavily engaged in national efforts to force the EPA and the Coast Guard to act quickly to adopt a strong federal standard that further strengthens protections for the Great Lakes. We have appeared in court alongside Great Lakes states such as Michigan and New York that have stepped up to the plate in the federal government's absence with their own ballast water protections. In fact, on Monday I will in Albany, New York, to help the New York Attorney General's Office defend the appeal of our successful defense of New York's ballast water rules.

NRDC applauds Wisconsin DNR for having the political courage to finalize these much-needed ballast water regulations. Sure, there are aspects of their law that we would like to see strengthened, but this represents real progress toward slamming the door on invasive species in the Great Lakes. It's long past time for the federal government to show leadership by creating a stronger national standard that will raise the bar even further. It is going to take more work to protect the Great Lakes ecosystem and fish stocks.

Don't they care about fish boils?

Off to Cleveland Today to Testify for Great Lakes and Oceans

2009-10-29T15:00:28Z

I'm off to Cleveland this morning to testify at the Great Lakes regional meeting of the National Ocean Policy Task Force. As a native Ohioan, I am excited to return to my home state and take this important opportunity to speak in favor of a national policy that the Obama Administration is creating to ensure protection of the Great Lakes ecosystem within a federal framework that coordinates efforts to restore, maintain, and protect our oceans and coastal waters. A national policy is necessary because, right now, our oceans, coasts and Great Lakes are governed by more than 140 laws and 20 different agencies, each with different goals and often conflicting mandates. President Obama is showing historic leadership to create the kind of bedrock environmental policy necessary to help change this.

Efforts have long been underway here in the Great Lakes region to overcome these challenges. The Great Lakes are a vast and unique freshwater ecosystem representing 95% of the standing freshwater in the U.S. - and 20% of the world's total - that spans two countries, eight states, and two Canadian provinces. Despite this vastness, less than 1% of Great Lakes water is considered "renewable" - i.e., recharged by rainwater, snowfall, or groundwater every year. Yet as a resource, the Great Lakes provide drinking water for over 40 million people, and contribute billions of dollars a year to our economy through commercial fishing, recreation, and many other industries. Working together is not optional for us. Our health and economy depend on the Great Lakes.

And in recent years, we as a community have worked together and made significant progress toward restoring, maintaining, and protecting the Great Lakes:

The Great Lakes Regional Collaboration has brought together state and federal agencies with tribal entities, local governments, industry and agriculture, and the public to create a planning structure and blueprint for Great Lakes restoration.
The Great Lakes Compact has brought together all 8 states and 2 provinces to establish a binding framework that will prevent overuse of Great Lakes water.
The Great Lakes Restoration Initiative represents an unprecedented commitment of federal resources by the Obama Administration that will allow the U.S. Environmental Protection Agency to accelerate implementation of a comprehensive, science-based restoration plan.

Despite these successes, the Great Lakes still face grave threats that need to be addressed in any national policy. Like the other coasts, the Great Lakes are under attack from invasive species, many of which are introduced or spread from the ballast tanks of ships. As of 2006, a new invasive species was being discovered in the Great Lakes every 7 months! Sewer overflows from old infrastructure every year close beaches around the country and make people sick. Excess nitrogen and phosphorus runs off from farm fields and city streets and lawns causing algal blooms and dead zones. Toxic contaminants - the legacy of the Great Lakes' industrial past - sit mixed with sediment in the bottom of Great Lakes rivers and harbors as they do on in coastal waters nationwide. Pollution from dirty coal plants and refining dirty tar sands oil adds more mercury and other heavy metals into our waters every year. And climate change threatens to put the entire ecosystem under stress, shifting temperatures to a Southern climate, creating droughts, and lowering lake levels.

We need a national policy that allows the federal government to take quick and effective action to address these problems, as well as new problems as they emerge.

We were also pleased to see the report include a special area of emphasis on water quality and sustainable practices on land. We hope that this plan will recommend:

Ballast water treatment standards as tough as those on the books in California and New York adopted nationwide, and ships required to install treatment technology as soon as possible, to prevent new invasive species;
Remediation of toxic sediments from Great Lakes rivers and harbors;
Vigorous enforcement of the Clean Air Act and Clean Water Act, to prevent new excess pollution from destroying any progress made and to reduce greenhouse gas emissions to sustainable levels;
Modernization of water infrastructure; and
Restoration of wetlands and habitats, buffer strips next to farm fields, and rain gardens next to highways, to keep excess nutrients from polluting our waterways.

The longer we wait to take action, the more complicated and expensive the problems become.

The Great Lakes are a vital resource in the heart of America, and they need to be at the heart of a new national policy that protects all of our waters - and the food, jobs, energy, and recreation that they provide.

Tell the President you support a national policy to protect our Great Lakes, and our oceans, here: https://secure.nrdconline.org/site/Advocacy?cmd=display&page=UserAction&id=1341.