STATE OF MICHIGAN, et al., Plaintiffs-Appellants, and GRAND TRAVERSE BAND OF OTTAWA AND CHIPPEWA INDIANS, Intervenor-Appellant, v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants-Appellees, and CITY OF CHICAGO, et al., Intervenors-Appellees.
No. 10-3891
United States Court of Appeals For the Seventh Circuit
August 24, 2011
OPINION PUBLISHED SEPTEMBER 13, 2011
ARGUED MAY 5, 2011—DECIDED AUGUST 24, 2011*
OPINION PUBLISHED SEPTEMBER 13, 2011
WOOD, Circuit Judge. Ambitious engineering projects that began at the time that the City of Chicago was founded have established a waterway in northeastern Illinois that connects Lake Michigan to the Mississippi watershed. (Additional links between the Mississippi and the Great Lakes exist elsewhere, from northern Minnesota to New York.) The system of canals, channels, locks, and dams, with which we are concerned, known today as the Chicago Area Waterway System (or CAWS, as the parties call it in their briefs), winds from the mouth of the Chicago River and four other points on Lake Michigan to tributaries of the Mississippi River in Illinois. The navigable link has been a boon to industry and commerce, and it supports transportation and recreation. Public health crises that once were common because the Chicago River emptied the City‘s sewage into the lake—the City‘s freshwater supply—vanished thanks to the Chicago Sanitary and Ship Canal, which reversed the flow of the Chicago River so that it now pulls water from the lake, into the CAWS, and down toward the Mississippi. During heavy rains and seasonal high waters in the region, the CAWS is used to control flooding.
This effort to connect the Great Lakes and Mississippi watersheds has not been without controversy. At the turn of the 20th century, Missouri sued in the Supreme Court to stop Illinois from opening the Sanitary and Ship Canal. An opinion by Justice Holmes rejected Missouri‘s challenge; the Court concluded that the state had not
In an attempt to stop the fish, Michigan, Minnesota, Ohio, Pennsylvania, and Wisconsin, all states bordering the Great Lakes, filed this lawsuit against the U.S. Army Corps of Engineers (the Corps) and the Metropolitan Water Reclamation District of Greater Chicago (the District), which together own and operate the facilities that make up the CAWS. The plaintiff states allege that
We conclude that the court‘s decision to deny preliminary relief was not an abuse of discretion. Our analysis, however, differs in significant respects from that of the district court, which was persuaded that the plaintiffs had shown only a minimal chance of succeeding on
I
To justify a preliminary injunction, the plaintiff states must show that they are likely to succeed on the merits
II
We begin with the states’ likelihood of succeeding on their common law public nuisance claim. The district court thought that the states had “at best, a very modest likelihood of success.” For the reasons discussed below, we think that the district court underestimated the likely merit of the states’ claim, particularly at this early stage of the case.
A
The Supreme Court recently reminded us that when it said, “There is no federal general common law,” in Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78 (1938), it did not close the door on federal common law entirely. American Electric Power, 131 S. Ct. at 2535-37. Instead, following
It is our federal system that creates the need for a federal common law to govern interstate disputes over nuisances. Tennessee Copper explains that when the states joined the union and in so doing abandoned their right to abate foreign nuisances by force, “they did not thereby agree to submit to whatever might be done.
1
The states’ public nuisance action here is based on allegations that non-native species of carp (specifically, bighead and silver carp) will migrate through water-
It includes interferences with the public health, as in the case of a hogpen, the keeping of diseased animals, or a malarial pond; with the public safety, as in the case of the storage of explosives, the shooting of fireworks in the streets, harboring a vicious dog, or the practice of medicine by one not qualified; with public morals, as in the case of houses of prostitution, illegal liquor establishments, gambling houses, inde-
cent exhibitions, bullfights, unlicensed prize fights, or public profanity; with the public peace, as by loud and disturbing noises, or an opera performance which threatens to cause a riot; with the public comfort, as in the case of bad odors, smoke, dust and vibration; with public convenience, as by obstructing a highway or a navigable stream, or creating a condition which makes travel unsafe or highly disagreeable, or the collection of an inconvenient crowd; and in addition, such unclassified offenses as eavesdropping on a jury, or being a common scold.
KEETON, et al., PROSSER AND KEETON ON TORTS § 90, at 643-45 (5th ed. 1984) (citations omitted). The Supreme Court‘s application of public nuisance principles to cases involving shared water resources reflects this broad understanding. For example, the Court has held that a change in one state‘s water-drainage system that causes flooding on another state‘s farms may create a public nuisance, see North Dakota v. Minnesota, 263 U.S. 365, 374 (1923); just as the industrial contamination of a body of water might, Arizona Copper Co. v. Gillespie, 230 U.S. 46, 57 (1913). In this vein, American Electric Power emphasized “that public nuisance law, like common law generally, adapts to changing scientific and factual circumstances.” 131 S. Ct. at 2536. The types of invasive carp that are the concern in this case have been designated as injurious species by the U.S. Fish and Wildlife Service, see
2
The next question, which is raised only by the Corps, is whether the plaintiff states may state a claim based on the federal common law of public nuisance against the United States. The Corps asserts that “the States have shown no basis for recognizing a federal common-law public nuisance claim against a federal agency.” But the Corps has not developed the argument much beyond this broad statement. Its brief moves instead to a discussion of whether federal common law has been displaced by congressional legislation and whether there is any role for the courts to play when agencies have taken concerted action to address a problem. These are two important issues that we will explore below, but neither point explains why a claim based on the federal common law of public nuisance cannot move forward against the United States. The plaintiff states have done little to counter the Corps‘s suggestion. They reply (unresponsively, in our view) that “the federal common law of public nuisance undoubtedly exists.”
The implications of finding that the United States has created a public nuisance strike us as potentially important and complex; this is not a topic that can be thrown on the table and then ignored. In this connection, it is telling that the Supreme Court went out of its way in American Electric Power to point out that it “ha[d] not yet decided whether private citizens . . . or political
We have not discovered any case in which the Supreme Court has expressly authorized a public nuisance action against the United States in its sovereign capacity. A recent concurring opinion in the D.C. Circuit makes the same observation, noting that “the Court has not endorsed any federal common-law causes of action against the Government during the post-Erie period.” El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836, 853 (D.C. Cir. 2010) (Kavanaugh, J., concurring). To understand common-law public nuisance in a way that would exclude suits against the United States would be faithful to the ancient origins of nuisance, where the term described the criminal act of infringing on the rights of the Crown, see William L. Prosser, Private Action for Public Nuisance, 52 Va. L. Rev. 997, 998 (1966); at least during that era, no one would have contemplated that the King or Queen could be the source of a nuisance. Whether this sort of sovereign prerogative has any place in modern American law, as a concept distinct
On the other hand, there are respectable arguments in favor of applying public nuisance to the acts of federal agencies, depending on the activity in which the agency is engaged. We have moved far beyond the Divine Right of Kings and the concept that the Crown can do no wrong. We may assume that an agency‘s effort to regulate private actors in a particular area would not give rise to a claim of public nuisance. But it is hard to see why the United States‘s ownership of a dam, power plant, or other facility should automatically foreclose a public nuisance claim brought by a state for harms created by the operation of that facility. If the facility were located in and owned by State A and it was damaging State B, then State B would be entitled to assert a common-law claim against State A (or one of its subdivisions or private citizens). Our case offers a good illustration of the point: the Corps and the District together operate facilities that are allegedly on the verge of creating a nuisance in waters of the plaintiff states; why should the plaintiffs be able to state a claim against the District but not the Corps?
B
The defendants argue that two additional obstacles also diminish the states’ likelihood of succeeding on their public nuisance claim. The first concerns the sovereign immunity of the United States. The Corps contends that even if it makes sense to apply public nuisance principles against the United States, the Corps is nevertheless not subject to suit because the United States has not waived its sovereign immunity for this kind of claim. The second argument, which we address below, is that congressional regulation of the invasive carp problem has displaced any role for federal common law.
“Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.” F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). The Corps takes the position that there is no such waiver of immunity for lawsuits against the United States that seek declaratory and injunctive relief based on a federal common-law tort. Whether this is correct depends on the interaction between section 702 of the APA and the Federal Tort Claims Act (FTCA),
We begin with a look at the APA. Section 702 reads as follows:
A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is
entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party.
Although the United States has argued from time to time that the “final agency action” requirement of § 704 limits the waiver of immunity in § 702, it has not prevailed on that ground. E.g., Veterans for Common Sense, 644 F.3d at 866-68; Trudeau, 456 F.3d at 186-87. The Corps wisely does not take that position here; as the Ninth Circuit explained recently, the conditions of § 704 affect the right of action contained in the first sentence of § 702, but they do not limit the waiver of immunity in § 702‘s second sentence. Veterans for Common Sense, 644 F.3d at 866-68. The only limitation on § 702 that requires our attention is the clause that says, “Nothing herein . . . confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought,”
That argument reads too much into congressional silence. The FTCA authorizes various tort claims for damages against the government to the extent that state law would provide relief, and it spells out a number of explicit exceptions. E.g.,
The D.C. Circuit has read the Tucker Act, which it interprets as the exclusive remedy for contract claims against the government, to include an implicit prohibition against specific relief in contract actions against the United States and thus to prevent reliance on the APA‘s waiver of immunity in such cases. Sharp v. Weinberger, 798 F.2d 1521, 1523-24 (D.C. Cir. 1986) (Scalia, J.). But the same court has since decided that, whatever the unspoken effect of the Tucker Act may be, the FTCA does not contain a comparable implicit ban against specific relief in tort cases against the government, and thus that plaintiffs in such cases may take advantage of the waiver in § 702 of the APA. U.S. Info. Agency v. Krc, 989 F.2d 1211, 1216 (D.C. Cir. 1993). To the same effect, we recently explained that while “[t]he tort claims act doesn‘t authorize equitable relief . . . . [T]he Administrative Procedure Act does,” and we went on to say that a plaintiff asserting a tort claim against a federal agency could take advantage of the APA to obtain equita-
If that were not reason enough to reject the Corps‘s immunity defense, there is more. By its terms, the FTCA does not apply to any federal common-law tort claim, no matter what relief is sought. As the Corps itself points out, state tort law—not federal law—is the source of substantive liability under the FTCA. See Meyer, 510 U.S. at 478-79; Sobitan v. Glud, 589 F.3d 379, 388-89 (7th Cir. 2009); cf. Smith, 507 U.S. at 198 (no FTCA claim for tort committed in Antarctica, a sovereignless entity not subject to either state law or the law of a foreign country). The states’ tort claim is based entirely on federal common law, and so the claim would not be cognizable under the FTCA in the first place. Meyer, 510 U.S. at 478. And if the FTCA could never apply to the type of claim advanced, then there is no reason to think that it implicitly forbids a particular type of relief for a claim outside its scope. For all these reasons, we conclude that the waiver contained in
C
The Corps and the District next contend that congressional regulation has displaced as a matter of law the federal common law on which the states rely. The district court rejected this argument on the ground that Congress had not done enough about the threat of invasive carp to qualify for displacement of the federal
The doctrine of displacement rests on the premise that federal common law is subject to the paramount authority of Congress. New Jersey v. New York, 283 U.S. 336, 348 (1931); see also American Electric Power, 131 S. Ct. at 2537 (“[I]t is primarily the office of Congress, not the federal courts, to prescribe national policy in areas of special federal interest.“). “‘[W]hen Congress addresses a question previously governed by a decision rested on federal common law . . . the need for such an unusual exercise of law-making by federal courts disappears.‘” American Electric Power, 131 S. Ct. at 2537 (quoting Milwaukee II, 451 U.S. at 314). Displacement focuses on the relation between Congress and the federal courts—it is not a doctrine that is concerned with the relation between the federal courts and the executive branch. This is a distinction often neglected by courts, as well as by the parties to this case. Whether federal courts can or should play a role in the face of comprehensive agency action is a critical issue, which we address below, but executive action or lack thereof does not affect the displacement analysis. See American Electric Power, 131 S. Ct. 2538-39 (rejecting the argument that an agency must have taken action before common law is
We readily concede that Congress has not been mute on the subject of the carp, but that simply underscores the critical question: how much congressional action is enough? In their supplemental memoranda filed after American Electric Power was decided, the defendants seize upon the statement from the opinion that we quoted above—that “the delegation is what displaces federal law.” 131 S. Ct. at 2538. Their view is that all Congress must do to displace federal law is to indicate its intention to delegate a particular problem to
Earlier federal nuisance cases provide additional insight into the level of congressional action that is sufficient to displace federal common law. In Milwaukee I, where Illinois sued Milwaukee and other cities to stop them from dumping sewage into Lake Michigan, the Court decided that the federal common law of public
Most recently, American Electric Power held “that the
For better or for worse, congressional efforts to curb the migration of invasive species, and of invasive carp in particular, have yet to reach the level of detail one sees in the air or water pollution schemes. In 1990, Congress passed the
Sections 3061(b) and (d) of the
With these important preliminary questions out of the way, we are at last ready to consider whether the plaintiff states have presented enough evidence in support of their nuisance claim to establish that they are likely to succeed on the merits. The district court thought that the states failed to demonstrate more than a minimal chance of success. Before this court, the states contend that the district court misunderstood the elements of public nuisance. They point to the district judge‘s statement that the tort “contemplates an active—or, at least, an imminent—threat of injury” as evidence of that error. In their view, all they must show to win final relief in a trial on the merits is that there is a “significant threat” that the nuisance will occur. This is a distinction without a difference; the district court correctly understood the law of public nuisance. Nonetheless, for different reasons we think that the district judge may have underestimated the states’ likelihood of success. We will elaborate on this point after a brief review of the governing law.
1
The district court began with the definition of public nuisance found in the Restatement (Second) of Torts, which has been a common reference point for courts considering cases arising under federal common law. See Connecticut v. American Electric Power Co., Inc., 582 F.3d 309, 351 & n.28 (2d Cir. 2009), rev‘d on other grounds, American Electric Power, 131 S. Ct. 2527 (explaining that
A court may grant equitable relief to abate a public nuisance that is occurring or to stop a threatened nuisance from arising. See Tennessee Copper, 206 U.S. at 238-39 (requiring the plaintiff to show that a defendant‘s actions “cause and threaten damage“). In Missouri v. Illinois, 200 U.S. at 518, the Court wrote that the threatened harm underlying the nuisance claim “must be shown to be real and immediate.” We have read the Court‘s cases to say that “[t]he elements of a claim based on the federal common law of nuisance are simply that the defendant is carrying on an activity that is causing an injury or significant threat of injury to some cognizable interest of the complainant,” Illinois v. City of Milwaukee, 599 F.2d 151, 165 (7th Cir. 1979), rev‘d on other grounds, Milwaukee II, 451 U.S. 304. Additional statements about averting threatened nuisances appear in the Restatement, see RESTATEMENT (SECOND) OF TORTS § 821B cmt. (i) (“[F]or damages to be awarded [in public nuisance cases] significant harm must have been actually incurred, while for an injunction harm need only be threatened and need not actually have been sustained at all.“); id. § 821F cmt. (b) (“[E]ither a public or a private nuisance may be enjoined because harm is threatened that would be significant if it occurred.“), and in other treatises, see, e.g., 5 J. POMEROY, A TREATISE ON EQUITY JURISPRUDENCE AND EQUITABLE REMEDIES, § 1937 (§ 523), at 4398 (2d ed. 1919) (noting that while “a mere possibility of a future nuisance
The plaintiffs believe that the district court‘s “imminent threat” requirement is inconsistent with these principles, but we do not share that view. The district court reproduced verbatim the elements of the claim as we described them in Illinois v. City of Milwaukee, supra. Its discussion of “immediacy” did nothing more than flesh out the Court‘s requirement of a “real and immediate” threat in public nuisance cases. There is no meaningful legal difference for purposes of the ultimate resolution of a public nuisance claim between a threatened nuisance that is “imminent” and one that is “immediate,” “significant,” “real,” an “unreasonable risk,” or anything similar. The job of a court considering the merits of a public nuisance claim is simply to determine whether the activity complained of is a nuisance and, if so, whether it is sufficiently close to occurring that equitable relief is necessary to prevent it from happening.
2
We part company with the district court when it comes to the assessment of the states’ likelihood of success on the merits. Here we think it critical to bear in mind the difference between preliminary or interim relief, on the one hand, and permanent relief, on the other. The principles that we just reviewed relate to the ultimate outcome of a public nuisance proceeding. This case has not yet reached that stage, and one consequence of its prelimi-
“The propriety of preliminary relief and resolution of the merits are of course significantly different issues.” Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 721 n.10 (2007) (internal quotation marks omitted). This is the reason why findings made at the preliminary injunction stage do not bind the district court as the case progresses. Cf. Guaranty Bank v. Chubb Corp., 538 F.3d 587, 591 (7th Cir. 2008). The most significant difference between the preliminary injunction phase and the merits phase is that a plaintiff in the former position needs only to show “a likelihood of success on the merits rather than actual success.” Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 546 n.12 (1987); cf. Chathas v. Local 134 Int‘l Bhd. of Elec. Workers, 233 F.3d 508, 513 (7th Cir. 2000) (“A plaintiff cannot obtain a permanent injunction merely on a showing that he is likely to win when and if the merits are adjudicated.“). In some cases, it is necessary to expedite an ultimate decision, and so courts sometimes consolidate the preliminary injunction hearing with the trial on the merits. See
We are concerned that the district court here may have lost sight of this distinction. By applying directly the law of public nuisance, the judge seems to have required the plaintiff states actually to show that they were entitled to permanent injunctive relief during the preliminary injunction hearing. The court concluded its discussion of the threat posed by invasive carp, for example, by saying that the states “ha[d] not made a convincing case” that the fish had pushed into the CAWS in significant numbers; and it said that the plaintiffs had not “shown that the fish [are] anywhere near establishing a population in Lake Michigan.” Because the states had not yet shown that the threat of nuisance was great enough in the final analysis to warrant an injunction to abate it, the district court seems to have assumed that they had also failed to show enough to obtain preliminary relief. To demonstrate the requisite likelihood of success, however, the states needed only to present a claim plausible enough that (if the other preliminary injunction factors cut in their favor) the entry of a preliminary injunction would be an appropriate step. The preliminary injunction, after all, is often seen as a way to maintain the status quo until merits issues can be resolved at trial. By moving too quickly to the underlying merits, the district court required too much of the plaintiffs and, correspondingly, gave too
3
We also question the inferences drawn by the district court from the facts that it so carefully found after evaluating five days of hearings, which included the testimony of expert witnesses and volumes of written materials on complex scientific and engineering issues. There is very little to criticize about the court‘s factual findings themselves. For instance, the district judge‘s decision to admit the expert testimony of Dr. David Lodge, who has been hired by the Corps and who testified for the states at the preliminary injunction hearing about his efforts to track invasive carp through the use of environmental DNA (eDNA) testing, reflects a proper application of
Along the same lines, the district court was right to take into account the results of eDNA testing. Despite its skepticism about the reliability of the technique and its concern that the state of eDNA science “did not permit a reasonable inference that live Asian carp are in the [CAWS] . . . in numbers that present an imminent threat,” the court acknowledged that the eDNA evidence lent some support to the conclusion that there may be invasive carp above (i.e., lakeside of) the Corps‘s electric barriers. Although we are less skeptical of the science than the district court, we too believe that caution in drawing inferences from the existence of carp DNA in the water is warranted. The eDNA technique, which tests water samples for markers matching a particular species, has a number of shortcomings: it is difficult, if not impossible, to know definitively whether a positive result signals a living specimen above the barrier (DNA may be shed by a dead or distant fish); a positive test does not reveal the number of live fish; and negative results do not necessarily signal the absence of carp. Efforts to corroborate eDNA results with traditional methods of capturing fish have not been successful thus far. On the other hand, the evidence is worth something. The eDNA technique detects carp when the fish are present in small numbers and in situations where the other fishing methods we described above might
We need not explore the factual record further. As we have said, our review of the district court‘s findings is deferential, and we see nothing that demands correction. The critical point is that this record is not a static thing. The district court will undoubtedly have more evidence before it when it is time to rule on the request for a permanent injunction, and we are confident that the court will keep its mind open to the implications of any new information. For purposes of assessing the need for preliminary relief, the court relied on its findings that at best a limited number of invasive carp were present in the CAWS and its observation that the so-called invasion front was approximately 30 miles downstream of the CAWS (60 miles from Lake Michigan) as of the spring of 2009. On this basis, it reached the conclusion that while the potential for damage to the Great Lakes is high, the problem had not advanced far enough to present a threat to the plaintiff states. From that it drew the conclusion that the states had shown little likelihood of success on the merits.
In our view, the proper inference to draw from the evidence is that invasive carp are knocking on the door to the Great Lakes. We need not wait to see fish being pulled from the mouth of the Chicago River every day before concluding that a threat of a nuisance exists. It is enough that the threat is substantial and that it may be increasing with each day that passes. Unlike many nuisances that can be eliminated after they are discovered, this one in all likelihood cannot be. The fact that it would be impossible to un-ring the bell in this case is another reason to be more open to a conclusion that the threat is real. In our view, the plaintiff states presented enough evidence to establish a good or even substantial likelihood of success on the merits of their public nuisance claim.
III
Before moving on to the other preliminary injunction factors, there are some particular questions about the APA claim against the Corps that we must address. We
The obvious starting point is to identify the final Corps action that the states assert has affected them. See
There is a good chance that most of the “actions” named by the states are not “final agency actions” for purposes of the APA. “Agency action” is defined as “the whole or a part of an agency rule, order, license, sanction, relief or the equivalent or denial thereof, or failure to act,”
Two types of plaintiffs are given a right of review in
IV
To satisfy the second threshold requirement for preliminary injunctive relief, the states must establish that irreparable harm is likely without an injunction. Judge v. Quinn, 612 F.3d 537, 557 (7th Cir. 2010). In the district court‘s view, this issue was the same as the question whether the states had shown a likelihood of success on the merits of their public nuisance claim. The states contend that it was error to conflate these inquiries. They are right. In this case, for example, the likelihood of success on the merits focuses on the threat of a nuisance, while the irreparable harm is concerned with the ability to correct that nuisance if it is created. Not every nuisance will give rise to irreparable harm. These two steps of the preliminary injunction analysis thus play different roles. The likelihood of success on the merits is an early measurement of the quality of the underlying lawsuit, while the likelihood of irreparable harm takes into account how urgent the need for equitable relief really is. Typically, these lines of inquiry will have some overlap, but they should not be treated as the same. With that in mind, we realize that the
Putting theory to one side, we have very little trouble concluding that the environmental and economic harm that the states have shown might come to pass would be genuinely irreparable if it did occur. The district court implied that this was the case when it discussed the magnitude of the potential harm. Last year in Supreme Court filings related to this litigation, the United States explained in a memorandum that it agreed with Michigan “that allowing a reproducing population of Asian carp to establish itself in Lake Michigan likely would be an irreparable injury.” Memorandum in Opposition of the United States, at 43, Original Nos. 1, 2, and 3, http://www.supremecourt.gov/SpecMastRpt/US_Memorandum_in_Opposition.pdf; see also id. at 47 (calling the harm “grave and irreparable“). All of the other parties seem to agree with this view. (To the extent that the defendants argue that there is no irreparable harm because the carp cannot establish a breeding population in Lake Michigan, they are avoiding the key question: what if the fish did establish a successful breeding group?) This near-unanimity on the question of irreparable injury makes sense. “Environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of
For preliminary relief to be granted, the irreparable harm must also be likely. That is, there must be more than a mere possibility that the harm will come to pass, Winter, 555 U.S. at 21-23, but the alleged harm need not be occurring or be certain to occur before a court may grant relief, United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953); United States v. Oregon State Med. Soc‘y, 343 U.S. 326, 333 (1952); Bath Indus., Inc. v. Blot, 427 F.2d 97, 111 (7th Cir. 1970). Commentators describe the required level of certainty this way: “[A] preliminary injunction will not be issued simply to prevent the possibility of some remote future injury. A presently existing actual threat must be shown. However, the injury need not have been inflicted when application is made or be certain to occur.” 11A CHARLES ALAN WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE § 2948.1, at 154-55 (2d ed. 1995). Because the district court analyzed likelihood of success on the merits at the same time as it assessed the danger of irreparable harm, all of the reservations we had about the inferences drawn by the district court in the former context apply with equal force here.
As we have already pointed out, no one knows whether this irreparable harm will come to pass. The intense
V
The balancing process to which we now turn is a classic part of any preliminary injunction inquiry. See Winter, 555 U.S. at 24 (“A preliminary injunction is an extraordinary remedy never awarded as of right. In each case, courts must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.“) (internal quotation marks and citations omitted). How much of the danger forecast by the states would be avoided by the particular injunction they have asked for? And what harm would the injunction impose on the defendants? Typically, after we balance these party-specific equities,
When it appears that preliminary relief may be burdensome, the Supreme Court has instructed courts to be careful as they balance the competing interests. Winter, 555 U.S. at 27; see also Kartman v. State Farm Mut. Auto. Ins. Co., 634 F.3d 883, 892 (7th Cir. 2011). In light of the multifarious ideas the states have for an injunction in this case, there can be no doubt that caution must be our word of the day. Even if a plaintiff‘s suit appears to have merit, an injunction should not necessarily issue if the harm to the defendant would substantially outweigh the benefit to the plaintiff. MacDonald v. Chicago Park Dist., 132 F.3d 355, 357 (7th Cir. 1997).
In the end we conclude that a preliminary injunction would cause significantly more harm than it would prevent. We reach this result for two reasons, which we summarize here before explaining the balance of harms in more detail. First, there are a number of problems with various line items in the plaintiffs’ proposed package of relief. Taken together, these problems leave us doubting whether the proposed injunction would reduce by a significant amount the risk that invasive carp will gain a foothold in the Great Lakes between now and the time that a full trial on the merits is com
A
1
It is best to begin by trying to understand precisely what preliminary relief the states would like. As the district court noted, their request has evolved as the case has moved forward. Indeed, their position has shifted even between their opening brief in this court and oral argument. The moving nature of the target compli
At this time, it is our understanding that the states believe that they are entitled to a preliminary injunction that would require the defendants to take these five steps:
a. Closing the Locks. Close and stop operating the locks at the Chicago River Controlling Works (the Controlling Works) and the O‘Brien Lock and Dam (O‘Brien), which sit at two of the five points of contact between the CAWS and Lake Michigan;
b. Screens over Sluice Gates. Install nine additional screens over sluice gates that are used to control water
c. Block Nets in the Rivers. Place block nets to stop fish in the Little Calumet River, which connects the CAWS to the lake at the Burns Small Boat Harbor in Indiana, and if necessary in the Grand Calumet River, which runs between the CAWS and the Indiana Harbor and Canal (Burns Harbor and Indiana Harbor are last of the five contact points between the CAWS and Lake Michigan);
d. Rotenone Poisoning. Use rotenone to poison fish in the CAWS, especially in areas north of O‘Brien.
e. Accelerating GLMRIS. Finish the part of the Great Lakes and Mississippi River Interbasin Study that relates to the CAWS, which Congress called for in the Water Resources Development Act of 2007, within 18 months.
The states have made two additional requests that do not require discussion. They say that the defendants should use the best methods to stop, capture, and kill carp that are present in the CAWS. We see this as a more general statement of the specific measures we have just outlined. In addition, the states want the defendants to continue using monitoring techniques, including eDNA testing, to search for invasive carp. But the Corps and the other agencies working on this problem are continuing eDNA monitoring efforts. In July 2011, for example, three rounds of positive eDNA testing results led to a four-day hunt for invasive carp (none
2
Before we discuss the harm and benefit of the preliminary relief the states request, we must point out an error in the states’ view of how the harms should be weighed. The states say that any harm the defendants might suffer because of the injunction pales “in comparison to the grave and truly irreparable harm that will occur if Asian carp establish a breeding population in the Great Lakes.” But that is not the correct measure of the harm avoided by the states’ proposed injunction. The states assume, without providing much explanation, that preliminary relief would stop invasive carp from ever reaching the Great Lakes. While that may be the effect that a perfectly designed permanent injunction would have, it is not an accurate measure of the harm that would be avoided by the states’ proposed preliminary injunction. At this early point, the question is to what extent would the proposed measures decrease the risk of invasive carp establishing themselves in the Great Lakes between now and when the litigation concludes? Stepping back from the subject matter of this litigation, we note that in addition to the CAWS, the Corps has identified a total of 18 places in Minnesota, Wisconsin, Indiana, Ohio, and New York where invasive carp could move from the Mississippi basin into the Great Lakes. These pathways outside of the CAWS necessarily reduce the likelihood that the states’ preliminary injunction will prevent carp
a. Closing the Locks. If the locks at the Controlling Works and O‘Brien are closed, the states concede that the closure need not be permanent or unqualified; instead, they say, the locks may be opened if closure would put public health or safety at risk. We are not sure how that would work. The City of Chicago says that police and fire services use the locks routinely, as do Coast Guard boats. At one point, the states agreed that passage for emergency boats through the locks was needed for public safety. That sounds reasonable to us. Now, however, their injunction would allow the defendants to open the locks only when the District needs to release water from the CAWS into the lake to control flooding (during so-called “reversal” operations). The states’ proposed injunction is made more effective by keeping the locks closed to all boat traffic, but in so doing, it increases the cost to emergency services. Even in its current iteration, the efficacy of the states’ plan for closing the locks is compromised because any flooding that would require the defendants to conduct reversal operations decreases the chances that the carp will be stopped—when the locks are open, water pours out of the CAWS and into Lake Michigan. (This happened most recently on July 24, 2011, after nearly seven
b. Screens over Sluice Gates. The states encounter similar problems with their request that the defendants screen off nine additional sluice gates. The District operates these huge gates, which open and close to adjust the rate of water flow, as part of its diversion effort—the process of drawing water out of Lake
Initially, the states wanted to force the defendants to close all of the gates, except when public health or safety might be harmed. They have revised that request so that now they ask for screens over the nine remaining sluice gates at these sites. This request would mitigate the risk of carp migration only (at best) during floods, for at other times the gates, unlike the locks, are closed anyway. Further reducing the effectiveness of this measure is the fact that in some flooding incidents where additional sluice gates must be opened, the locks must be opened as well. Screens over additional sluice gates would not do much good if fish could swim through open locks. Finally, all available evidence suggests that it will take a long time for the District to acquire additional property, to research feasible options for a system of screens that will not become clogged with debris during flooding, and to build those screens. This means that this portion of the states’ preliminary injunction might not even be in place before the full trial on the merits has concluded. For all of these reasons, we think that installing screens over sluice
c. Block Nets in the Rivers. The prospect of placing block nets in the Little Calumet and Grand Calumet Rivers strikes us as potentially the most effective element of the proposed relief. At the time of oral argument, the states asked that the Corps place block nets only in the Little Calumet River; at that point, a cofferdam in the Grand Calumet River prevented fish migration and alleviated the need for nets there. We will assume that were this dam removed, the states would ask the Corps to place nets in the Grand Calumet River as well. The Corps, however, has said that it is already looking at the possibility of installing nets in both waterways, but that it is concerned that flooding will increase as debris becomes caught in the nets. The states respond that block nets could be cut free and replaced with new nets if risks of flooding materialized. All of the parties are vague about the possibilities and implications of this plan. At this stage, it is enough to say that this step seems more promising than others when it comes to mitigating the risk that fish will appear in Lake Michigan. We take the Corps at its word that this option is under serious consideration and would be implemented if and when a feasible plan can be developed.
d. Rotenone Poisoning. In contrast to the block net idea, the suggestion that the Corps use rotenone to poison fish in the CAWS seems untenable to us. Rotenone is a chemical that acts as a piscicide when it is released in a body of water. Though humans would
e. Accelerating GLMRIS. That brings us to the aspect of the proposed injunction that would require the Corps to accelerate its long-term study of ways in which it might permanently prevent the migration of invasive species (including, but not limited to, the carp) between the Great Lakes and the Mississippi basins. The states
According to the Corps, GLMRIS examines every potential pathway between the two watersheds and proposes solutions to stop migration through each one. Examination of the CAWS, which the Corps intends to finish by 2015, is just one portion of the study. The Corps adds that it has the power to implement solutions that are devised as the study progresses. The states would like the court to order the Corps to finish the CAWS portion of GLMRIS within 18 months. They are not the only ones who have criticized the study for taking too long; the City of Chicago and others have as well. See, e.g., Dan Egan, Chicago Urges Army Corps to Report on Carp Sooner, Milwaukee Journal Sentinel, Apr. 10, 2011, http://www.jsonline.com/news/wisconsin/119547049.html. It may well be that faster action is appropriate if possible; and, as the Corps conceded during oral argument, it may be necessary for the Corps to implement measures devised through GLMRIS on a rolling basis. But we do not see how a preliminary injunction that would essentially ask the Corps to study harder and think faster would
When we take all five aspects of the states’ proposed injunction together, we can say only that there is some evidence that the relief sought would reduce by an undefined amount the risk of carp establishing a breeding population in the Great Lakes. It is equally apparent, however, that the steps the states have proposed offer no assurance that they will block the carp over the short run or, over the long run, that they will save the Great Lakes ecosystem and the $7 billion industry that depends on that ecosystem. We must therefore turn to the other side of the equation: the harm that the proposed steps would inflict on the opponents of preliminary relief.
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The states have adopted a rather insouciant attitude about the potential harm that their proposal might inflict. “[T]he federal government has made it clear that it is willing to spend significant resources to reduce this threat,” the states write, “so the cost of a few bulkheads should not prove a serious impediment to protecting the Great Lakes.” This tone continues throughout their briefs, with remarks like, “While the Corps asserts that the Coast Guard doesn‘t have the funds to [dock additional ships on both sides of locks that would be closed by the injunction], this is just a matter of money.” Of course this dispute is in part a matter of money; but scoffing at the defendants’ concerns about the costs of
To make matters worse, both sides throw around large numbers to make the case that the balance of harms favors their position. We have already explained why the proposed injunction is quite unlikely to prevent the states’ forecasted $7 billion in harm. But the defendants invent similarly extreme costs. We are told repeatedly that almost $2 billion in cargo moves through locks in the CAWS each year. This, however, is not the cost that an injunction would impose on commercial shipping. If the locks were closed, cargo would have to be loaded from ships onto ground transportation at some point along the journey. Estimates of the cost of off-loading
If the requested preliminary injunction were to issue, we can be sure that it would impose significant costs. First, we would have the expenses of implementing all of the measures that the states have recommended. In addition, funds that the defendants spend complying with the injunction likely would be diverted from other agency efforts to curb invasive carp. If we required the Corps to complete its long-term study within 18 months, the Corps suggests that it would not have time to study the problem comprehensively and that the study might not adequately support any proposed solutions. The prospect of closing the locks permanently, installing screens on sluice gates, and placing block nets in the CAWS increases the risk of flooding, which (to the extent that it occurs) would impose costs throughout the region. The states say that there are ways to avoid those costs. The locks, for example, could be opened at the District‘s discretion during flooding. But, as we have explained, this would be possible only if the states agreed that bulkheads were not necessary. (The states argue that bulkheads could be removed by a barge and crane to permit for flood relief. Even if that were possible,
We can stop there. This overview demonstrates that the preliminary injunction the states have requested would impose substantial costs, yet given the current state of the record, we are not convinced that the preliminary injunction would assure much of a reduction in the risk of the invasive carp establishing themselves in Lake Michigan in the near future. That the balance of harms at this stage of the litigation favors the defendants might be enough by itself to support a conclusion that preliminary relief is not warranted, even though we have concluded that the states have demonstrated a likelihood of success on the merits and a threat of irreparable harm. See Hoosier Energy Rural Elec. Co-op v. John Hancock Life Ins. Co., 582 F.3d 721, 725 (7th Cir. 2009)
B
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While American Electric Power is a case about congressional displacement of federal common law, the Supreme Court took the opportunity to touch generally on the relative competence of courts and expert agencies when it comes to solving complex environmental problems. “It is altogether fitting that Congress designated an expert agency, here, EPA, as best suited to serve as primary regulator of greenhouse gas emissions,” the Court wrote, explaining further:
The expert agency is surely better equipped to do the job than individual district judges issuing ad hoc, case-by-case injunctions. Federal judges lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order. Judges may not commission scientific studies or
convene groups of experts for advice, or issue rules under notice-and-comment procedures inviting input by any interested person, or seek the counsel of regulators in the States where the defendants are located. Rather, judges are confined by a record comprising the evidence the parties present. Moreover, federal district judges, sitting as sole adjudicators, lack authority to render precedential decisions binding other judges, even members of the same court.
American Electric Power, 131 S. Ct. 2539-40 (internal citation omitted). This limitation of the judiciary is a familiar feature of American law. See, e.g., Negusie v. Holder, 129 S. Ct. 1159, 1171 (2009) (Stevens, J., concurring in part and dissenting in part); Kelo v. City of New London, 545 U.S. 469, 487-88 (2005); Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 544-45 (2005); Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 865-66 (1984); Tennessee Valley Authority v. Hill, 437 U.S. 153, 194-95 (1978).
Our sister circuits have explored the impact of this inherent limitation of the judicial role in cases comparable to ours. The Second Circuit has written that “[c]ourts traditionally have been reluctant to enjoin as a public nuisance activities which have been considered and specifically authorized by the government.” New England Legal Found. v. Costle, 666 F.2d 30, 33 (2d Cir. 1981). In the same vein, the Fourth Circuit recently reversed a lower court‘s decision to enter an injunction that would have required the TVA to implement new emissions controls. North Carolina, ex rel. Cooper v. Tennessee Valley Authority, 615 F.3d 291. The district court in that case entered an in-
None of this means that courts can no longer craft remedies designed to abate a public nuisance. In light of the general approach the Supreme Court took in American Electric Power,
2
The record in this case leaves no doubt that federal and state agencies, executive officials, and working groups have mounted a tremendous effort to halt the migration of invasive carp. As we have already mentioned, the
In order to stop the invasive carp, the ACRCC has developed what it calls the “Asian Carp Control Strategy Framework,” which is now in its third edition. The most recent document lists over 40 collaborative projects that the working group has designed to deal with invasive carp; many of these initiatives are underway or have been completed already. As the ACRCC describes it, the projects fall into eight categories:
- targeted monitoring assessment activities above and below the electric barrier system, including enhanced monitoring above and below the barriers, electrofishing, and rapid response teams;
- commercial harvesting and removal actions below the electric barriers (which involves fishing
and removal of fish in the Lockport area, where the CAWS connects to the Des Plaines River; creating new markets for the fish; and investigating certification requirements for invasive carp to be sold commercially); - electric barrier actions and waterway separation measures (consisting of the construction of barriers between various waterways so that fish cannot move from one to the other during flooding; expedited construction of the now-completed third electric barrier; fish tagging to test the effectiveness of the barriers; and separation of various watersheds that pose risks);
- myriad studies on how best to separate the watersheds; the effectiveness of various measures; and risk modeling;
- research and technology development (including investigation of how fish move around the CAWS; food sources for invasive carp in the lakes and how those sources might be eliminated; the use of seismic technology to divert or kill invasive carp; attraction and repulsion pheromones of invasive carp; creation of toxin screens to kill fish; study of the weaknesses of carp to different toxins; physical barriers; reducing carp egg viability; and new detection methods, among other things);
- eDNA analysis and refinement (which involves monitoring and sampling for eDNA in the CAWS and increasing the effectiveness of eDNA testing);
- enforcement activities designed to prevent people from transferring carp between bodies of water; and
- work on funding, including the development of methods to pay for measures among the contributing groups.
In addition, the ACRCC has established three working groups: monitoring and rapid response; invasion control; and communication and outreach.
What we have described already reflects a substantial effort, but there is more. The Corps has been fulfilling the marching orders that it has received from Congress. In addition to the electric barriers and GLMRIS, which we have discussed in detail, we have mentioned the Corps‘s study of the effectiveness of its three electric barriers for stopping the movement of invasive carp through the CAWS. The final version of the Efficacy Study is due later this year, but there already have been four interim reports (numbered in typical bureaucratic fashion as Interim I, II, III, and IIIA), and the Corps has implemented measures pursuant to some of these reports. Interim I identified an area where the Des Plaines River and the Chicago Sanitary and Ship Canal are so close together that carp could wash between them during floods. (The plaintiffs had argued in their complaint that this area represented a huge problem.) The Corps has since built a fence to stop migration between these waterways, and that fence has already proven effective. Meanwhile, Interim II, which is not yet completed, will set operational parameters for the three electric barriers so that they can most effectively deter the movement of invasive
In addition to the measures outlined in the interim efficacy reports, the agencies continue to rely on traditional methods to monitor and kill invasive carp, including tracking, netting, electrofishing, and rotenone poisoning; and, as we have discussed, they have also continued eDNA testing throughout the CAWS. Where eDNA reveals a potential threat, the agencies have responded with days-long hunts for invasive carp. Continual fishing south
It is our understanding that the defendants and the agencies we have just discussed are actively pursuing the measures that we have just described. In addition, where the defendants have represented that future steps will be taken—whether a disco screen, the water gun, operating the electric barriers at optimal settings, considering the possibility of block nets in the CAWS, completing and implementing GLMRIS in phases, continuing to monitor aggressively with traditional and eDNA techniques, or any of the other actions we have highlighted—we have no reason at this point to assume that this work will not be done. Whatever happens, the plaintiff states will continue to have a seat at the table as these and future plans are made and implemented. We conclude that on this record, there is nothing that any preliminary injunction from the court could add that would protect the Great Lakes from invasive carp while this suit is being adjudicated any better than the elaborate measures we have just described. This tips the balance of harms decisively in favor of the defendants.
We take very seriously the threat posed by the invasive species of carp that have come to dominate parts of the Mississippi River basin and now stand at the border of one of the most precious freshwater ecosystems in the world. Any threat to the irreplaceable natural resources on which we all depend demands the most diligent attention of government. As the case proceeds, the district judge should bear in mind that the risk of harm here depends upon both the probability of the harm and the magnitude of the problem that would result. In the end, however, the question whether the federal courts can offer meaningful equitable relief—either preliminary or permanent—to help abate a public nuisance in the face of agency action is factual in nature. It depends on the actual measures that the agencies have implemented already and those that they have committed to put in place going forward. Our ruling today is tied to our understanding of the current state of play. We recognize that the facts on the ground (or in the water) could change. The agencies currently working hard to solve the carp problem might find themselves unable to continue, for budgetary reasons, because of policy changes in Washington, D.C., or for some other reason. If that happens, it is possible that the balance of equities would shift. Similarly, new evidence might come to light which would require more drastic action, up to and including closing locks on Lake Michigan for a period of time. If either situation comes to pass, then the district court would have the authority to revisit the question whether an exercise of
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