In a new phase of the decades-long feud over the degradation of the Great Lakes, Michigan has sued Illinois again, this time over Michigan’s worries about “the threatened invasion of the Great Lakes by injurious fish species — resulting from the Lake Michigan diversion project created and as now maintained by Illinois, the [Metropolitan Water Reclamation District of Greater Chicago] District, and the [U.S. Army] Corps [of Engineers].” As an Original lawsuit, the case will be tried directly in the Supreme Court, if the Justices agree to allow it.
A fact sheet describing the background of the new fish controversy is here. A news release from the Michigan attorney general’s office is here. The text of a motion for a preliminary injunction is here. The lawsuit itself — technically, a motion to reopen a 1967 Supreme Court decree (amended in 1980) and to issue a new ruling on the fish migration question – can be found here. A 142-page appendix is here.
Michigan is one of several upper Midwest states that have returned to the Court several times to challenge the state of Illinois’ and Chicago’s dealings with sewage problems in waterways in and around the city. Michigan’s lawsuit in 1922 was designated No. 2 Original. It has kept that number through reopenings in later years. Whether it retains that number with its new challenge has not yet been determined by the Court. (The Court has a new numbering system now for Original cases, with the numbers running serially rather than by Term.)
Beginning with the construction in the 1890s of a diversion canal, designed to keep Chicago’s sewage from flowing into Lake Michigan and contaminating the city’s water supply, the controversy over water flows in the upper Midwest has led to decrees by the Supreme Court in 1930, 1933, 1956, 1967 and 1980. Illinois’ neighbors have complained that the diversion efforts have reduced their own water supplies, and have led to pollution of their waterways.
After the Court restricted the amounts of diverted water, it has allowed Illinois’ neighboring states to return if they had new or additional complaints. Michigan is relying upon that continuing jurisdiction as a basis for its new lawsuit. That is why its case is styled a plea for reopening an existing decree, with supplemental relief focused entirely on creating temporary and longer-term barriers to the migration of Asian carp species into Lake Michigan through connecting waterways.
The state’s basic new plea is that the Court declare Illinois and its partners in the diversion project to be creating a “public nuisance” by raising the risk that bighead and silver carp will make their way into the Great Lakes. The state wants a permanent Court order requiring Illinois, Chicago’s sanitary district, and the Corps of Engineers to modify control facilities to ensure that the carp do not migrate into Lake Michigan, in particular.
Michigan’s lawsuit notes that federal wildlife officials have concluded that Asian carp, imported in the 1960s to control plant growth in fish farms along the Mississippi River, reproduce rapidly and have huge appetites that consume aquatic food that would normally be eaten by local species of fish. They thus pose a significant risk, according to Michigan, to its fishing industry and to sport fishing.
Under the Court’s Rules, Illinois, the Chicago sanitary district, and the Corps of Engineers have 60 days to file opposition to the new challenge.