Supreme Court decision on Asian carp: the ball is in our court now

Pardon the length of this post, but I haven’t blogged in awhile, and this one is a bit complicated. Prominent in the news last week was the Supreme Court’s dismissal of Michigan’s petition to end the Chicago diversion and restore the natural divide between the Mississippi River system and Lake Michigan. After earlier refusing to hear two emergency motions to order short-term actions to stop the carp, the Court refused to reopen its consent decree that governs the Chicago diversion — which means the Court has declined to participate in any way on the Asian carp issue. That’s certainly disappointing, but at least in my mind, it does not have to be devastating.

Here’s why.

The only way to make sure Asian carp don’t enter Lake Michigan is to create a permanent barrier in the Chicago waterway system that stops live organisms from traveling through the canals (otherwise known as “ecological separation”). And the only entity that can build that barrier is the Army Corps of Engineers. To build such a barrier, the Corps would need to do studies on where and how the barrier could be built so as to maximize ecological protection while simultaneously creating economic growth (or at least minimizing economic harm). And then Congress would need to authorize the Corps to do the work and provide significant funding for construction.

Now, all this can happen without intervention by the Supreme Court. The Corps can do its study in a timely way (say, in 12-18 months), Congress can adopt the recommendations and fund them, and the Corps can then undertake construction. The problem is that the Corps is dragging its feet on the study and our Congressional delegation is divided as to what it would like the Corps to do. We heard last week that the Corps thinks it cannot finish its study by the end of 2012. And Congress isn’t likely to provide clear direction because there have been divisions between the Illinois delegation and most of the other Great Lakes states over the issue of ecological separation; without a unified front from the Great Lakes, Congress is unlikely to provide billions of dollars to fix a problem primarily associated with the Great Lakes.

Until the Supreme Court decision last week there were two strategies to getting the Corps to act quickly to complete the right kind of study and then for Congress to fund it.

The first strategy was (and is) to build consensus: to work with members of Congress, the states, the cities, the business community, scientists, and environmental organizations to find a method to do ecological separation that closes this canal system to invasive species while improving transportation and the Chicago and regional economies. This strategy brings people together to find a win-win outcome; it builds a consensus that the Corps would have every reason to adopt. We are already seeing signs that such a consensus is possible: the adoption of resolutions endorsing ecological separation by the Great Lakes Commission and its chair, Illinois Governor Pat Quinn, was an excellent development. But that strategy takes time, and the Corps so far has been resistant to changing the slow, ineffective path on which it currently treads.

The second strategy was the opposite of consensus – the litigation option. Over the opposition of Illinois and some Chicago stakeholders, the Court could just order the Corps to do a study to determine the best ecological separation option and then implement it. Such an order would have been helpful in the following respects: it could have made sure the Corps did the right study (on how, and not whether, to do ecological separation); it could have forced the Corps to do the study quickly; and it could have established a special master to push the Corps to implement the study. But even under the best case scenario, the Court’s order could not have forced the government to stop the carp. The Court could not order Congress to provide funding, and without funding, there’s no construction for ecological separation. So even if we had the best decision from the Court, we’d need major action from Congress to protect the Great Lakes.

And that’s where the lawsuit created a bit of a paradox. A successful lawsuit could move the Corps along much more quickly…. but it also made action by Congress more unlikely. The lawsuit deepened and exacerbated the conflict between Illinois and other states, particularly Michigan, and their Congressional delegations. That conflict has made it extremely difficult for Congress as a whole to act. So while the lawsuit would have been really helpful in getting the Corps to do a good study quickly, it could have made doing the construction needed for ecological separation more difficult.

The dismissal of the lawsuit is a mixed bag. On the one hand, no lawsuit means a chance for the first strategy to work: to find widespread agreement around a win-win scenario for ecological separation. That agreement can be a force for funding and construction of ecological separation in ways that a Court order could not. On the other hand, it means that there’s no clear way to hold the Corps accountable – to conduct the right kind of study, and to conduct it quickly. It means that the first strategy becomes the only strategy. If we can’t build consensus and build it quickly, then the Corps will continue plodding along, often in the wrong direction, and the Great Lakes will be in real trouble.

That means the ball’s in our court now: we in the region, and not the Supreme Court, will decide the fate of the lakes. We’ve got some work to do.


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