The Uninvited

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Category: Environmental Law, Public, Water Law
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The recent discovery of a voracious, non-native aquatic predator only nine miles from Lake Michigan is alarming but not particularly surprising, in light of the unappealing options for legal and political responses. However, when coupled with policy and budget changes implemented by the Trump administration, the new find may reignite a series of legal battles between the Midwestern states that the Seventh Circuit has dealt with twice in the past six yeAn invasive Asian carp jumps from the waterars. First, the factual background: Asian carp (shorthand for several species including grass carp, bighead carp, silver carp, and black carp) eat up to 20% of their weight per day and grow to several feet long and over one hundred pounds. Videos document their tendency to leap out of the water when startled, sometimes colliding with boaters and causing injury or damage. They have no natural predators and, by some estimates, would wreak havoc on the Great Lakes food chain and devastate the multi-billion dollar Great Lakes fishery. In 2006 the U.S. Fish and Wildlife Service estimated that “Asian carp pose the greatest immediate threat to the Great Lakes ecosystem.”

The story of the carp’s inexorable march to the doorstep of the Great Lakes is both a lesson in the law of unintended consequences and a cautionary tale of political and legal inefficacy. Beginning in the 1960s, southern fish farmers imported several species of carp to control vegetation in ponds. The carp entered the lower Mississippi River basin via accidental releases and flooding events, and have since rapidly migrated through nearly the entire basin, with their populations increasing exponentially. Even so, the carp could not have threatened the Great Lakes without the artificial connection between the Mississippi and Great Lakes basins created by the City of Chicago in the year 1900, which was originally constructed as a crude sewage treatment solution but now serves other purposes.

The Obama administration made some efforts to control the spread of the carp, and especially to keep them out of the Great Lakes. In 2010, the president convened a “carp summit” at the White House and appointed an “Asian carp czar” who led an effort to eradicate them. President Obama also proposed a $78 million plan to improve the federal response to the issue. Later, the United States Army Corps of Engineers developed a four-pronged strategy to prevent carp from becoming established in the Great Lakes, including the construction and operation of a large electric dispersal barrier between the Chicago Sanitary and Ship Canal and the entry to the Great Lakes. And the Wisconsin Department of Natural Resources recently developed a “Response Framework for Invasive Species,” which addresses invasive aquatic species without specifically mentioning the carp. None of these well-meaning efforts has successfully halted the carp’s progress.

The Trump administration has taken a different approach that may run afoul of two recent Seventh Circuit decisions and lead to additional legal maneuvering. As I described previously in this space, Trump has proposed entirely defunding the Great Lakes Restoration Initiative, which funds many of the carp control efforts. The administration is also delaying the Corps from releasing an updated draft plan to control the spread of the carp. And even if the plan is released, it is unclear whether the political will exists to implement it; even the strategies developed during the Obama administration haven’t been fully executed (for example, the electric dispersal barrier has been disabled or bypassed  from time to time).

These difficulties were largely predictable. In 2011 I wrote a paper examining the legal aspects of the invasive species problem. My analysis revealed serious weaknesses in American environmental laws faced with addressing invasive species problems, and suggested ecosystem-based, rather than species-based, approaches. Here, for example, a focus on carp alone is short-sighted, as the Great Lakes are threatened by more than 180 invasive and non-native species. The absence of appropriate and implementable legal remedies has forced concerned Great Lakes states to take unusual measures; in 2010, the Supreme Court denied a petition for original action by Michigan, Wisconsin, and several other Midwestern states to force Illinois to sever the artificial connection between the Mississippi and the Great Lakes.

Perhaps even more relevant in light of current events, a subsequent lawsuit filed in district court by the same plaintiff states named as defendants the Army Corps and the Metropolitan Water Reclamation District of Greater Chicago (MWRD); it sought similar remedies relied on common law theories such as public nuisance, and also failed when, in 2011 and again in 2014 the Seventh Circuit rejected the claims on the grounds that the Army Corps was already doing enough to stop the carp. As noted above, those efforts could cease if the Great Lakes Restoration Initiative is defunded. This is highly relevant now because in its 2014 opinion the Seventh Circuit invited the plaintiff states to file a subsequent public nuisance action “should the time come when reliable facts show that the carp pose a more immediate threat to the Lakes, or when the Corps and the [MWRD] slacken their efforts to prevent the passage of the Asian carp out into Lake Michigan.” Perhaps that “time has come,” given the recent findings and the Trump administration’s proposal to cut funding for response efforts.

Meanwhile, as federal and state authorities continue their struggle to define a viable course of action, the carp advance closer and closer to the Great Lakes. It now seems a matter of when, not if, the carp enter our ecosystem. In this, life has imitated art (both the 1944 horror flick and a somewhat more recent pronouncement that “life finds a way.”)

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One Response to “The Uninvited”

  1. Nicholas C Zales Says:

    Very interesting. If those carp get into the Great Lakes you can kiss every other kind of fish goodbye. It would seem insane that our federal government has so little interest in protecting the five largest bodies of fresh water in the United States. Some estimate the sport fishing industry contributes $1 billion a year to the Great Lakes economy. Who knows what these fish will do to the quality of the water. It is beyond reckless to do nothing and yet that is what is being done.

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