Now faced with DNA evidence suggesting that Asian carp have reached Lake Michigan, the Supreme Court is scheduled to revisit this week its January decision not to order the temporary closure of two Chicago-area locks that could prevent some of the invasive fish from swimming into the Great Lakes.
The Supreme Court gave no explanation in January when it rejected Michigan's request to close the locks. Michigan decided to try its luck again last month, saying the need for the Supreme Court to intervene has become more urgent in light of new testing results that detected Asian carp DNA for the first time in Lake Michigan's Calumet Harbor.
The new request has been distributed to the justices for consideration at their private conference Friday. Orders made during a Friday conference are typically released the following Monday.
Michigan and several other Great Lakes states argue that the two structures -- the O'Brien Lock and Dam and the Chicago Controlling Works -- are among Lake Michigan's last lines of defense against the spread of invasive species from the Mississippi River. They have proposed lock closures as a short-term solution while the court decides whether to reopen a decades-old lawsuit over Illinois's management of the waterways.
Michigan has asked the court to appoint a special master, who would gather evidence and issue recommendations to the court. The state seeks the permanent "ecological separation" of the two bodies of water, and the justices' decision on the injunction could signal whether they are receptive to that broader request.
Nick Schroeck, executive director of the Detroit-based Great Lakes Environmental Law Center, said he is not optimistic that the court will grant such an "extraordinary" injunction, but the court might be more inclined to appoint a special master and reopen the case. If the justices consider the lawsuit a dispute between multiple states, as Michigan has argued it is, the case would have jurisdiction in the Supreme Court and nowhere else.
"It makes sense for the Supreme Court to appoint a special master who's an expert on this and have them take a look," Schreck said. "Otherwise, they're essentially telling six states to take a hike. I don't think we've seen that very often."
Ohio, Pennsylvania, New York, Minnesota and Wisconsin have filed briefs supporting Michigan's request to reopen the case, as have several conservation groups. Indiana filed a brief urging the Supreme Court to reopen the case and appoint a special master but opposing the closure of the locks until the merits of that action can be examined more closely.
Illinois and the Metropolitan Water Reclamation District of Greater Chicago have until Monday to submit briefs in response to the motion to reopen the case.
Locks are key
The question of whether to close the locks has become the nexus of the interstate dispute, pitting Illinois's shipping industry against Great Lakes fishing and recreation interests. After announcing a $78.5 million Asian carp response plan in January, administration officials said the U.S. Army Corps of Engineers would examine whether the potential benefits of closing the locks would outweigh the costs imposed on boaters and freight carriers.
"We are considering every alternative to keep the Asian carp out of the Great Lakes, and closing the locks is one of those alternatives," said Nancy Sutley, chairwoman of the White House Council on Environmental Quality, after the talks. "There are other pathways for the Asian carp to get into the Great Lakes ... so closing just those two structures would not necessarily be the silver bullet that we're all looking for" (Greenwire, Feb. 9).
Maj. Gen. John Peabody, the Army Corps' Great Lakes commander, testified before a House panel last month that the agency is "urgently developing additional measures" to put in place "once warmer weather in the spring prompts increased fish activity."
According to the framework, the agency is scheduled to recommend plans for the locks this month to Jo-Ellen Darcy, assistant Army secretary for civil works, who will make a preliminary decision by April 30.
Michigan contends that is not quick enough. In his renewed request for an injunction, Michigan Attorney General Mike Cox (R) described the review as an "excruciatingly slow and bureaucratic response" that "does nothing to stop the ongoing migration" of the fish.
"Agencies should be acting faster," Sen. Carl Levin (D-Mich.) said in a statement last month. "Fish are not active in the winter months; however, if we wait until warmer weather to take action, it may be too late."
Army Corps officials have said they will consider closing the locks on a certain schedule, but it remains unclear whether the agency is considering total closure. Though Sutley said it is an option, Solicitor General Elena Kagan said otherwise in a memo urging the Supreme Court not to grant the new injunction request.
"Although the short-term measures currently being considered under the heading of modified structural operations do not involve an indefinite closure of the locks, the Corps intends to study permanent separation of the Great Lakes and Mississippi River watersheds as a long-term solution," she wrote. Total closure of the locks would "threaten public safety and flood control, substantially affect the regional and national economies, and greatly disrupt transportation systems."
Lynn Whelan, a spokeswoman for the Army Corps in Chicago, said yesterday a decision on lock closures is "still in the data-gathering stage" and no recommendations have yet been made to Darcy. She said total closure of the locks will be considered as part of the long-term study that will examine the feasibility of ecological separation, but she could not say whether it is being considered as an option for Darcy's decision in April.