Supreme Court Refuses to Issue Asian Carp Injunction

Published February 1, 2010

The U.S. Supreme Court has refused to grant a temporary injunction to close the locks connecting the Chicago River and Lake Michigan. A suit filed against Illinois filed in December 2009 by Michigan Attorney General Mike Cox to prevent Asian carp from entering the Great Lakes from Chicago-area waterways will continue, however.

Several States Join Michigan
Pennsylvania, New York, Wisconsin, Minnesota, Ohio, and Ontario all filed documents joining Michigan’s action, and Indiana expressed support for Michigan after both the Illinois and the Obama administration filed Supreme Court briefs opposing Cox’s efforts. The Supreme Court hearing was held on January 15, and the refusal was issued January 20.

Cox sought the injunction to close the O’Brien shipping locks and dam in Illinois. The locks allow for navigation from the Mississippi River to the Great Lakes. An electrical barrier had been installed by the Army Corps of Engineers to prevent the migration of Asian carp into Lake Michigan, but DNA from the invasive species has recently been discovered past the barrier.

Michigan Demands Action
Asian carp migrated into the region from Southern states, where they were used to clean ponds in commercial fisheries. Floods gave the fish access to the Mississippi River, and they have been migrating north since the early 1990s.

The fish consume up to 40 percent of their own body weight each day, and they frequently grow to more than 100 pounds. Should they enter the Great Lakes, it is feared the carp will starve native fish populations by consuming extraordinary amounts of plankton.

On January 20 the Army Corps announced the discovery of environmental DNA from carp beyond both the O’Brien locks and the electrical barrier in Lake Michigan’s Calumet Harbor.

“Hundreds of thousands of Michigan jobs and the $7 billion Great Lakes fishery were further jeopardized when the U.S. Army Corp of Engineers learned Friday of this devastating new DNA evidence but failed to alert the Supreme Court before it announced today, four days later, its decision not to grant an immediate injunction,” said Cox in a press statement.

“Michigan residents are outraged that President Obama’s administration and Illinois officials refuse to take immediate action despite continued and escalating evidence of an immediate threat,” Cox added.

Illinois Says Locks Necessary
Illinois’s attorneys argue closing the locks would expose a major population to health and safety risks. They argued the U.S. Coast Guard and Chicago Police and Fire Departments rely on the open waterways to respond to “large-scale incidents” including potential terrorist attacks.

Closing the locks would also harm the regional economy, argue Illinois attorneys. Water routes are used for shipping and delivering cargo, and there are not enough rail or trucking services available to “make up for the halt in commercial navigation caused by lock closures,” according to Illinois’ response to Michigan’s complaint.

‘Threat Is Very Real’
Michigan has 10,000 miles of Great Lakes shoreline, whereas Illinois only possesses 63 miles. “It is distressing that inaction on the part of a state with only a few miles of shoreline is threatening the economy and ecology of Michigan and every other state in the Great Lakes Basin,” said Cox.

“There are many instances when environmentalists overstate perceived perils to the Great Lakes,” said Russ Harding, environment and science director for the Mackinac Institute and former director of the Michigan Department of Environmental Quality. “The threat that Asian carp pose is very real, however.”

“If the carp enter Lake Michigan, the damage they’ve caused everywhere they’ve been thus far could very well be devastating and ultimately irreversible to the delicate ecosystem of one of the world’s largest freshwater sources,” Harding explained.

Court Still to Weigh In
Michigan argued the injunction was necessary because Illinois was likely to lose the case and irreversible damage would occur before the Supreme Court could issue a final ruling. Although the Supreme Court denied the injunction request, the Court will consider the merits of the case later this term and is expected to render a decision by June of this year.

Bruce Edward Walker ([email protected]) is a Michigan-based writer and publisher of the Mackinac Center’s MichiganScience magazine.