Back in 2010, a group of Great Lakes states led by Michigan sued the Army Corps of Engineers (“Corps”) and Metropolitan Water Reclamation District of Greater Chicago to permanently close the locks of the Chicago Area Waterways System in order to halt the coming invasion of Asian carp. The states’ effort came much closer to an end earlier this month after years of arguing, when a federal judge denied all of Michigan’s claims. Though the judge was sympathetic towards the plight of the Lakes, he concluded that the court cannot order any lock closure. Instead, closure would require an act of Congress.
While we also have sympathy for the states’ concerns and share their frustration at the painfully slow response to the carp invasion, the suit’s passing may not be all bad. The suit contributed mightily to what has been big source of tension in the search for a solution: an “us versus them” mentality.
Asian carp are not a Chicago problem. They are not an Illinois problem. Really, they aren’t even a Midwestern problem. This is a national issue that will require significant resources to be brought to bear. And in this political climate, success will require the unique combination of cooperation and muscle in D.C. that was mustered to push through the Great Lakes Compact and legislation that forced the Corps to speed up its response to the crisis.
When Michigan’s former Attorney General sued Chicago’s water district—arguably blaming it for the current carp crisis and lack of action—the suit contributed to an “us versus them” face-off that boils down to “the Great Lakes states versus Chicago and Illinois”. This positioning makes the necessary cooperation extremely difficult. While a solution to the carp crisis almost certainly lies in the murky waters of our Windy City waterways, it’s in the self-interest of the other Great Lakes states to sit down at the table with Chicago and Illinois to help—not to stand across the courtroom and accuse. By and large this cooperation has occurred in many venues, but the Michigan lawsuit has been looming on the side, threatening closure of all the locks without any bigger picture collaboration among the necessary and impacted parties.
NRDC is proudly built on a history of litigation. But for us, going to court is the last option, after collaborative means have been exhausted or appear untenable. This case jumped the gun. Now that the slate is newly clean, we can get back to working together towards a real solution.
The Great Lakes states must help convince the Corps and Congress of what they already convinced the court: that permanent separation is the only possible means to stop the carp invasion. After all, Congress will have a primary role to play in determining what measures will be taken to halt the carp’s advance, with (according to the agency) the Corps playing the supporting role of consultant. The states have several opportunities in this process to advocate for separation. For example, in arriving at a set of options and recommendations, the Corps is required by law to consult with the Great Lakes states (among others). In addition, the states’ environmental agencies belong on the study’s Executive Steering Committee, which advises the Corps on everything from the study’s goals to the range of options available to stop invasive species. The states should take advantage of these influential positions to convince the Corps, Chicago, and ultimately Congress why hydrologic separation of the Great Lakes from the Mississippi River Basin is the only real answer.
Let’s hope that any oppositional attitude will be dismissed with this lawsuit. While the suit may still be appealed or possibly amended, the interests of the Great Lakes states are best served by working with the Corps, Congress, the public and ultimately each other to arrive at a creative and comprehensive solution with benefits that reach far beyond invasive species control.
Asian carp and other aquatic invasive species threaten the entire Great Lakes region, and the region needs to face the threat as a unified front. The “us versus them” attitude that litigation in this context creates distracts from the real issue: not who is at fault, but what needs to be done. And it distracts from the real venue: not the courtroom in this instance, but the offices of the Corps, other public stakeholder processes, and the halls of Congress.