(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)

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 recent South Carolina v North Carolina case from the U.S. Supreme Court confirmed the test that non-state interveners must pass to take part in an action based on the Court's original jurisdiction between two or more states.

According to Jeff Kray from Marten Law who provides a detailed analysis of the case, this is a significant decision notably because it can have the following effect:

«The Supreme Court’s procedural decision in South Carolina v. North Carolina opens the door to private water users to intervene in water resource disputes between states and foreshadows more active private party involvement in such cases.»

More involvment from private actors might mean, on one hand, that stakeholder participation could increase and ultimatly reduce the importance of artificial state boundaries superimposed on natural watersheds, but on the other hand, it might also mean increased costs and delays in resolving water disputes as well as comparative disadvantage for poorer water users.

Finally, because the test for non-state actor involvment is not tied in some way to the states' use of their legislative and administrative power to apportion water within their own jurisdiction, increased non-state intervention might ultimatly result in a need for additional jurisprudential developments to clarify the states' role and powers in water apportionment.

(BY HUGO)

On 27 October 2010, Professor Jake Peters from the USGS Georgia Water Science Centre will give a conference on inter-state tensions over the Apalachicola-Chattahoochee-Flint River Basin at the University of Dundee.

The conference, titled «Dukes of Water Hazard: Alabama, Georgia and Florida wage war over the waters of the Apalachicola-Chattahoochee-Flint river basin, but what about the fish, birds, bugs and bunnies?», is jointly organised by the University of Dundee’s UNESCO Centre for Water Law, Policy and its Centre for Environmental Change and Human Resilience.

Details for the conference can be found here.