(BY HUGO)

The Great Lakes Law Blog from Professor Noah Hall informs that five American States have filed an action in a federal district court against the Army Corps of Engineers and the Metropolitan Water Reclamation District of Greater Chicago to protect Lake Michigan from the invasive Asian carp. This follows a decision by the Supreme Court not to hear the case earlier this year.

It will be interesting to see whether Ontario will continue to represent Canadian interests in this case as it did before the Supreme Court and intervene in the file before the federal district court.

(BY HUGO)

The U.S.A. Supreme Court has denied the motion to reopen the Wisconsin et al. v. Illinois et al. case and decree. According to the Great Lakes Law Blog:

«The Supreme’s Court denial is disappointing but not surprising, given the Obama administration’s opposition to having the case heard. While other legal options (such as a case in state court or a lower federal court) are still open, it is doubtful that any new legal case would be resolved in time to prevent the Asian carp from spreading into the Great Lakes. The Great Lakes Environmental Law Center is investigating other legal strategies, but at this point the pressure should be on federal agencies and Congress to take effective action immediately.»

(BY HUGO)

The U.S.A. Supreme Court decides today whether to reopen the original case and decree concerning the Chicago Ship and Sanitary Canal (Wisconsin et al. v. Illinois et al.).

Usually, orders from Friday are released on Monday. The Court's decision will shape further actions in the Asian Carp crisis, and hopefully the Great Lakes Law Blog will provide legal insights into what can be expected in the near future.

An article by Gabriel Nelson in the New York Times informs that more litigation before lower State or Federal Courts will follow if the Supreme Court declines to reopen the case. According to the article, one potential plaintiff could be Canada.

It would be surprising to see Canada enter the fray in this file, as Ontario has been the point authority in charge since the beginning of the Asian Carp crisis on the Canadian side: Ontario is the only Canadian stakeholder to have filed a memorandum before the Supreme Court, and bilateral federal/provincial agreements with the federal government of Canada might indicate that Ontario could take responsibility in Great Lakes management matters.

In any case, these potential developments might answer the question raised by this older post on the potential use of the recourse provided under Section 7.3 of the 2008 Great Lakes Compact by one of the Canadian Provinces.

While a refusal to reopen the original case and decree might induce significant delays potentially disastrous for the Great Lakes ecosystem, it might also rebalance the 13 December 2005 Great Lakes-St Lawrence River Basin Sustainable Water Resources Agreement which, from an institutional perspective, is tilted in favour of American interest due to U.S.A. Supreme Court original jurisdiction.

If the Court declines jurisdiction, it could be argued that the potential for federal judicial interference decreases, thereby putting the riparian States and Provinces on a more equal footing and more firmly in charge of their basin.

(BY HUGO)

Another loss in a long series of lost battles: Steve Kellman reports for the Circle of Blue that a preliminary injunction to close the locks on the Chicago Canal to prevent Asian Carp entry in the Great Lakes has been rejected - again.

It's particularly interesting to see how the court attacks scientific evidence based on the eDNA tests because this method does not provide certainty as to the establishment of viable Carp communities beyond the Canal locks (see notably p.44 & ff. of the decision).

At an abstract level, there could be a parallel with the processes related to discrediting scientific evidence on human induced climate change. Prevention and precaution appear completely immaterial. We need to hit a wall at full speed to realise there's a problem and take action. We can only cross our fingers and hope the crash is not fatal.

(BY HUGO)

The Great Lakes Law Blog reports that the US Supreme Court denied Michigan's renewed motion for preliminary injunction to close the Chicago Canal and prevent a Great Lakes-St. Lawrence River basin invasion by the Asian Carp.

The Supreme Court was as concise as for the denial of the original motion in January, so it remains unclear why the preliminary injunction is rejected.

(BY HUGO)

The Circle of blue focuses on the Asian Carp dispute with a series of articles providing backgroud information and a follow-up on the political developments in Washington.

(BY HUGO)

Following denial of an earlier motion in January, The Great Lakes Law Blog reports that Michigan has just filed a renewed motion with the US Supreme Court for a preliminary injuction to close the Chicago Ship and Sanitary Canal to prevent a detrimental invasion of the the Great Lakes by the Asian Carp.

The renewed motion from Michigan focuses mostly on the fact that the balance of equity is in favour of Michigan. The economic analysis of the respective harm suffered by Illinois and Michigan stresses that possible damages to the local economy have been greatly exaggerated. Temporary closure of the Canal locks is even more urgent since Asian Carp DNA has now been found in Lake Michigan.

These are important arguments. However, the Supreme Court did not give any clue on the motives for rejecting the initial preliminary injunction in January, and these arguments could be aimed at the wrong target.

One major argument from Illinois to ask for denial of the initial preliminary injunction was based on lack of jurisdiction. Essentially, reopening the Wisconsin vs Illinois Supreme Court Decree governing the Chicago Canal diversion is not appropriate because the issue is unrelated to the substance of the decree, i.e. the amount of water diverted. Moreover, Illinois argues that it is not the owner and operator of the Canal (the US Army Corp of Engineers appears to be that).

Michigan initially addressed the jurisdiction issue in its Motion to reopen and for a supplemental decree. The renewed motion from Michigan addresses additional issues related to the jurisdiction argument from p.35 to 37.

According to Michigan, there are two avenues for its action to succeed: 1) under the Wisconsin vs Illinois Decree; 2) under the original and exclusive jurisdiction of the Supreme Court on all controversies between two or more state. Michigan argues that Illinois' involvement as a party in this action is essential because only Illinois may provide some aspects of the relief sought by Michigan: according to Illinois state law, only Illinois has the power to block the passage, capture and eradicate Asian Carps.

Despite this, Michigan writes:

«Michigan does not make this request lightly or without recognition of the extraordinary nature of the relief sought in the context of the Court's limited exercise of original jurisdiction. Michigan does so in these unique circumstances, out of its responsibility to protect one of its greatest resources from an imminent threat of extraordinary harm.» (p.9)

The jurisdiction question will possibly be a decisive issue.

Beside the legal battle, significant political developments in Washington DC this week (see Circle of Blue) might provide an alternative solution to the Asian Carp invasion.

(BY HUGO)

The US Supreme Court dismissed Michigan's motion for preliminary injunction today (see previous posts and Dan Egan's article).

Hearing on the merits will pake place on February 19, with judgement rendered possibly not before a few months.

In the meantime, it is reported that DNA sampling taken on December 8th would confirm the presence of Asian Carp in Lake Michigan...

Is this the demonstration that article 20 of the UN 1997 Convention on non-navigational uses of international watercourses is not customary international law?

(BY HUGO)

Ontario has filed a brief before the US Supreme Court in the dispute regarding the closing of the Chicago Sanitary and Ship Canal to prevent the invasion of the Great Lakes and St-Lawrence River Basin.

Ontario supports Michigan's motion and notably argues that:

- The introduction of the Asian Carp to the Great Lakes poses the threat of immediate and irreparable environmental harm;

- Damages suffered as a result of an Asian Carp invasion would be crippling to Ontario's fishing economy;

- Prevention of the invasion is preferable and more effective than after the fact erradication and control;

- The ecosystem approach to Great Lakes management must be consensual and collaborative, and involve Canadian authorities, as shown by the transnational legal framework currently in place.

Of note is the fact that all parties appear to have agreed to Ontario's intervention as Amicus Curiae to the Court.

(BY HUGO)

The possible invasion of the Great Lakes and St-Lawrence River Basin by the Asian Carp has re-ignited a dispute between riparian American States.

This invasive species artificially introduced in Southern U.S.A. for fish farming purposes has colonised the Mississippi and its tributaries since the 1970s.

The Asian Carp is now in a position to invade the Great Lakes basin through the Chicago Sanitary and Ship Canal piercing the continental divide. Recently, DNA traces of the Carp have been found beyond the Canal's electrified barriers blocking access to Lake Michigan.

To prevent colonisation of the Lakes by the Carp, which would wreak havock on their ecosystems, the State of Michigan recently filed a petition to the Supreme Court of the United-States in order to modify the decree governing the Chicago Canal water withdrawal as per Wisconsin et al. v. Illinois et al.

Michigan seeks an order from the Supreme Court to close the locks on the Chicago Canal and ultimatly to modify the means by which water is withdrawn from the Lakes in order to prevent the Asian Carp invasion.

This has generated intense media coverage in the last month (New York Times - ABC News - Great Lakes United). A comprehensive investigation from Dan Egan providing background to the issue was published in 2006 by the Milwaukee Wisconsin Journal Sentinel.

Excellent legal coverage is provided here by Professor Noah Hall, a promient North American water law expert involved as counsel in the dispute.

One issue raised by this dispute pertains to the marginalisation of the two Canadian provinces in the Great Lakes St-Lawrence River Basin, Ontario and Québec. Because the conflict will be settled in the U.S.A. before the Supreme Court in the context of a pre-existing inter-state dispute to which the provinces are not party, the possibility for the Provinces' meaningful involvement in a solution to the problem is remote.

This sheds another light on the consensual nature of the framework for management of the Great Lakes that materialised further to the 13 December 2005 Great Lakes-St Lawrence River Basin Sustainable Water Resources Agreement.

According to article 207, §10 & 11 of the Agreement as well as Section 4.14, §1 & 2 of the 2008 Compact, some current water withdrawals such as the one from the Chicago Canal are still governed by the terms of the United States Supreme Court Decree in Wisconsin et al. v. Illinois et al.

Under these paragraphs, when an application is made to the Supreme Court, States shall seek formal input and use best efforts to facilitate participation of the Provinces to the proceedings, or at least restrain from unreasonably impeding their participation.

An interesting question would be to study the potential use of the recourse provided under Section 7.3 of the Compact by one of the Provinces.