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Michigan v. United States Army Corps of Engineers

ELR Citation: 42 ELR 20254
Nos. 10 C 4457, (N.D. Ill., 12/03/2012) (Tharp, Jr.)

A district court dismissed a lawsuit brought by five states seeking an order requiring the U.S. Army Corps of Engineers to create physical barriers in the waterways connecting Lake Michigan and the Mississippi River Basin in order to prevent bighead and silver carp from migrating into the Great Lakes. The states argued that the Corps' failure to install physical barriers to physically separate the waterways will cause a public nuisance—namely, invasion of the Asian carp—resulting in grave and irreversible environmental and economic harm to the entire Great Lakes region. But the primary action that states demand to abate the nuisance alleged—hydrologic separation of the Chicago Area Waterway System from Lake Michigan—lies outside of the limits of the Corps' congressionally delegated authority to act. In the absence of a constitutional violation (and none is here alleged), the court may not order parties to take action that would directly contravene statutory mandates and prohibitions, and the common law recognizes that actions required by law do not give rise to liability for nuisance. If the states want to remove these congressional impediments to hydrologic separation and to replace them with effective barriers between the waterways, they must do so by means of the legislative process, not by alleging that the Corps' acts and/or omissions, required by federal statutes, violate federal nuisance common law and therefore justify an override of those statutes by the courts. The states' complaint, therefore, was dismissed.