Supreme Court to consider Asian carp injunction tomorrow

With the Supreme Court scheduled to consider at its conference tomorrow the lawsuit aimed at preventing the spread of invasive Asian carp into the Great Lakes, states and industry groups are anxiously awaiting a ruling signaling where the nation's highest court stands.

The court could decide as early as tomorrow whether to grant Michigan's request for a preliminary injunction to close a pair of locks in the Chicago-area waterways connecting the Mississippi River to the Great Lakes.

The case provides an unusual level of intrigue because of its status as an original lawsuit -- one that will be tried first in the Supreme Court rather than starting in a lower court. Though the court could proceed in several directions, the results of tomorrow's conference are guaranteed to provide crucial insight into the court's thinking about the case and influence any new efforts by Great Lakes states to reach an agreement, onlookers say.

"Everybody wants to know what's going to happen tomorrow, and we really have no idea," said Noah Hall, a Great Lakes expert and professor at Detroit's Wayne State University Law School.

The high-stakes fish fight started last month, when Michigan Attorney General Mike Cox (R) filed a lawsuit asking the Supreme Court to reopen a longstanding lawsuit regarding Chicago's use of water from Lake Michigan. Joined by Minnesota, Wisconsin, Ohio, Pennsylvania, New York and Ontario, Michigan argued that the Asian carp would crowd out native species in the Great Lakes, threatening a multibillion-dollar fishery industry.


Illinois has countered by saying that blocking the waterways could cripple the local shipping industry and expose parts of the Chicago area to flooding. During a hearing at Chicago's Shedd Aquarium on Wednesday, Illinois Sen. Dick Durbin (D) said his state is "not in denial" about the urgency of keeping the carp at bay.

"There are no simple and easy solutions to this," the U.S. Senate's No. 2 Democrat said. "Let's not meet in the courtroom. Let's meet in the halls of Congress and come up with a real solution."

Hall said he is confident in the merits of Michigan's argument but uncertain whether the court will expedite the state's complaints by reopening the old case.

The Metropolitan Water Reclamation District of Greater Chicago argued in a response to the lawsuit that the Supreme Court should not reopen the case, which was originally filed in 1922 and revisited most recently in 1980. The response argued that Michigan's claims regarding Asian carp don't pertain to the previous lawsuit, which concerned the amount of water Chicago was authorized to divert from Lake Michigan.

U.S. Solicitor General Elena Kagan echoed that argument in a response on behalf of the federal government, urging the Supreme Court to pass on the case.

"This case is altogether unlike the decades-old interstate dispute about water rights that Michigan purportedly seeks to reopen," Kagan wrote. "Instead, this case is an attempt to obtain judicial review of the ongoing actions of a federal agency, the [U.S. Army Corps of Engineers] -- but to do so under a novel theory of federal common law, without respecting the well-established principles governing judicial review of agency action."

The Supreme Court's stance on the lawsuit could tip the balance in any legislation or negotiations aimed at striking a compromise among the Great Lakes states. Because Illinois controls the waterways in question, the other states will need a friendly Supreme Court as a bargaining chip, Hall said.

"The only way that Michigan and the other Great Lakes states will have their interests addressed will be by going to court," he said. "If the Supreme Court declines to hear the whole thing, all of their leverage and the impetus for finding a solution is gone."

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