Asian Carp and the Great Lakes: When is Irreparable Harm 'Likely' and 'Imminent' Enough?
Trends ABA Section on Environment, Energy, & Resources, Vol. 42, No. 4, pp 1-14, March/April 2011
7 Pages Posted: 12 Dec 2010 Last revised: 10 Jun 2019
Date Written: March 24, 2011
On December 2, 2010, in Michigan v. U.S. Army Corps of Engineers, U.S. District Judge Robert Dow of the Northern District of Illinois refused to shut down two shipping locks in the Chicago Area Waterway System (CAWS) to prevent Asian carp from reaching Lake Michigan. This very short article reviews the Northern District of Illinois's decision, focusing on Judge Dow's assessment of whether an ecologically and economically disruptive Asian carp invasion of Lake Michigan is either "likely" or "imminent."
The decision that it was not turned in many ways on the limits of the relatively new technique of environmental DNA, or "eDNA," testing, which can tell researchers little more than that some Asian carp have made it past the electric barriers designed to keep them out of Lake Michigan. Thus, from one perspective, this decision was a rather routine application of the three-part federal test for a preliminary injunction in a case with significant uncertainties, both scientific and legal. Simultaneously, however, the decision underscores how the American legal system impedes the implementation of truly precautionary measures that would promote ecological sustainability in large aquatic ecosystems, especially in the face of far more immediate and countervailing economic and public safety impairments.
Keywords: Asian Carp, Lake Michigan, Invasive Species, Precautionary Approach, Sustainable, Great Lakes
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