SUPREME COURT:

Justices decline to intervene in Asian carp dispute

The Supreme Court today turned away a request from several states that it intervene to help prevent invasive Asian carp from entering the Great Lakes.

The court's refusal to get involved means that an August 2011 ruling by the Chicago-based 7th U.S. Circuit Court of Appeals, in which it declined to impose an injunction against the U.S. Army Corps of Engineers, will now stand.

In today's brief announcement, the court noted that Justice Elena Kagan recused herself in the matter, most likely because of her previous role as U.S. solicitor general earlier in the litigation.

The states -- Michigan, Wisconsin, Minnesota, Pennsylvania and Ohio -- had asked for a preliminary injunction that would have forced the Army Corps to install nets to stop the fish from reaching the lakes from the Chicago River in addition to speeding up a five-year study aimed at solving the problem.

The states fear that the fish, known as voracious eaters that can undermine the food chain, would devastate the Great Lakes freshwater ecosystem were they to get a foothold there. The fish, some of which can be as big as 110 pounds, are already well established in the Mississippi River Basin.

The litigation has continued as the Obama administration weighs how to handle the problem. Most recently, the administration said it wanted to spend $50 million in the coming year on various initiatives (Greenwire, Feb. 23).

In December, a White House official maintained there is time to come up with a long-term plan, despite claims by the states and environmentalists that the Army Corps is working too slowly (E&ENews PM, Dec. 21, 2011).

The legal question was whether the risk of the carp reaching the Great Lakes in large number was a sufficient public nuisance under federal common law to warrant the courts' getting involved.

It is a similar issue to one the Supreme Court tackled last year, when it held that six states could not try to limit emissions of greenhouse gases under federal common law (Greenwire, June 20, 2011).

In the carp case, the 7th Circuit rejected the states' request for an injunction but conceded that there was a genuine concern and did not rule out getting involved at a later stage if the federal government did not follow through on its plans.

"In light of the active regulatory efforts that are ongoing, we conclude that an interim injunction would only get in the way," Judge Robert Dow wrote. "We stress, however, that if the agencies slip into somnolence or if the record reveals new information at the permanent injunction stage, this conclusion can be revisited."

In their petition to the high court, lawyers for the states said the appeals court "committed three distinct, significant legal errors" in analyzing the grounds for imposing a preliminary injunction.

On behalf of the Obama administration, Solicitor General Donald Verrilli responded that the appeals court had correctly concluded that the costs of judicial intervention, bearing in mind that existing effort to combat the carp problem "outweigh any limited benefit that preliminary injunctive relief might afford."

Litigation continues in federal district court, and "the ongoing effort to prevent the spread of Asian carp is being effectively managed," Verrilli added.

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