Legal News

State Fight! Michigan Sues Illinois to Stem Influx of Asian Carp

By Ashby Jones

Is there a cooler type of lawsuit than those fought between states? The stakes are usually high, and the cases don’t have to muck around in the lower courts; nope, the Supreme Court has original jurisdiction over such disputes. (Typically, in such cases, the court appoints a special master to gather facts, which are then presented to the court. Click here for a recent story from the NLJ’s Tony Mauro on the role of the special master.)

The latest to hit the high court’s docket: a suit filed by the state of Michigan against the state of Illinois over the growing Asian carp problem. On Monday, Michigan asked the court to close shipping locks near Chicago to prevent Asian carp from invading the Great Lakes and endangering their $7 billion fishery. Click here for the AP story; here for the Chicago Tribune story.

Scientists say the carp, which were brought to the Mississippi Delta years ago to help clean away algae, are possibly within 6 miles of Lake Michigan. If that’s so, the only other obstacle between them and the lake are shipping locks, which open frequently to grant passage for cargo vessels. The carp present a grave threat to the delicate ecosystems of the Great Lakes.

The lawsuit asks for the locks and waterways to be closed immediately as a stopgap measure, echoing a call by 50 members of Congress and environmental groups last week. But the suit goes further, also requesting a permanent separation between the carp-infested waters and the lakes.

That would mean cutting off a link between the Mississippi and Great Lakes basins created more than 100 years ago, when Chicago reversed the flow of the Chicago River and began sending sewage-fouled Lake Michigan water south toward the Mississippi River.

The lawsuit also asks the Supreme Court to require a study of the Chicago waterway system to define where and how many carp are in those waters and to eradicate them.

Noah Hall, an assistant professor at Wayne State University’s law school, said Michigan has a good chance of prevailing if it can show the potential harm posed by Asian carp would outweigh the benefits of keeping the locks open.

“The carp invasion is a good textbook example of irreparable harm,” Mr. Hall said.

Illinois Attorney General Lisa Madigan’s office was reviewing the suit and had no immediate comment, spokeswoman Natalie Bauer said.

Full post as published by Law Blog - WSJ.com on December 22, 2009 (boomark / email).