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
ARGUED MAY 5, 2011 — DECIDED AUGUST 24, 2011. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 10 C 4457—Robert M. Dow, Jr., Judge.
Before MANION, WOOD, and WILLIAMS, Circuit Judges.
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 presented enough evidence to establish that the flow of sewage toward the
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 the Corps and the District are managing the CAWS in a manner that will allow invasive carp to move for the first time into the Great Lakes. The states fear that if the fish establish a sustainable population there, ecological disaster and the collapse of billion-dollar industries that depend on the existing ecosystem will follow. They say that the defendants’ failure to close down parts of the CAWS to avert the crisis creates a grave risk of harm, in violation of the federal common law of public nuisance, see American Electric Power Co., Inc. v. Connecticut, 131 S. Ct. 2527 (2011), and they advance a related claim against the Corps based on the Administrative Procedure Act (APA),
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 their claims. We are less sanguine about the prospects of keeping the carp at bay. In our view, the plaintiffs presented enough evidence at this preliminary stage of the case to establish a good or perhaps even a substantial likelihood of harm – that is, a non-trivial chance that the carp will invade Lake Michigan in numbers great enough to constitute a public nuisance. If the invasion comes to pass, there is little doubt that the harm to the plaintiff states would be irreparable. That does not mean, however, that they are automatically entitled to injunctive relief. The defendants, in collaboration with a great number of agencies and experts from the state and federal governments, have mounted a full-scale effort to stop the carp from reaching the Great Lakes, and this group has promised that additional steps will be taken in the near future. This effort diminishes any role that equitable relief would otherwise play. Although this case does not involve the same kind of formal legal regime that caused the
I
To justify a preliminary injunction, the plaintiff states must show that they are likely to succeed on the merits of their claims, that they are likely to suffer irreparable harm without an injunction, that the harm they would suffer without the injunction is greater than the harm that preliminary relief would inflict on the defendants, and that the injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). We will affirm the decision to deny a preliminary injunction unless the district court has abused its discretion. Judge v. Quinn, 612 F.3d 537, 557 (7th Cir. 2010). As usual, we review questions of fact for clear error and questions of law de novo. Girl Scouts of Manitou Council, Inc. v. Girl Scouts of United States of Am., Inc., 549 F.3d 1079, 1086-87 (7th Cir. 2008).
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 Erie, a “keener understanding” of federal common law developed, under which federal courts “fill in ‘statutory interstices,’ and, if necessary, even ‘fashion federal law‘” in areas “‘within national legislative power.‘” Id. at 2535 (quoting Henry J. Friendly, In Praise of Erie - And of the New Federal Common Law, 39 N.Y.U. L. Rev. 383 (1964)). In American Electric Power, the Court reaffirmed a long line of cases that have “approved federal common law suits brought by one State to abate pollution emanating from another State.” Id. at 2535-36. These decisions reach at least as far back as the battle between Missouri and Illinois over sewage, see Missouri v. Illinois, supra, and they have continued from there, see Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907), New York v. New Jersey, 256 U.S. 296 (1921), New Jersey v. City of New York, 283 U.S. 473 (1931), Illinois v. City of Milwaukee, 406 U.S. 91 (1972) (Milwaukee I), City of Milwaukee v. Illinois, 451 U.S. 304 (1981) (Milwaukee II), and American Electric Power, 131 S. Ct. 2527. But it has been recognized for a much longer period that the equitable power of the courts extends to suits to abate public nuisances. See United Steelworkers of America v. United States, 361 U.S. 39, 60-61 (1959) (Frankfurter, J., concurring) (assembling examples from 16th century England to the turn of the 20th century in the United States).
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. They did not renounce the possibility of making reasonable demands on the ground of their still remaining quasi-sovereign interests; and the alternative to force is a suit in this court.” 206 U.S. at 237. A state that wants to bring a lawsuit attacking a nuisance emanating from outside of its borders faces at least two legal
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 waterworks operated by the defendants from rivers connected to the Mississippi into Lake Michigan and on to the other Great Lakes. “When we deal with air and water in their ambient and interstate aspects, there is a federal common law.” Milwaukee I, 406 U.S. at 103. We know that this body of law applies in a dispute about “the pollution of a body of water such as Lake Michigan bounded, as it is, by four States,” id. at 105 n.6. But the Court has cautioned that it has never “held that a State may sue to abate any and all manner of pollution originating outside its borders.” American Electric Power, 131 S. Ct. at 2536. The Corps and the District contend that the common law does not extend to the allegations in this case. They stress that they are not emitting “traditional pollutants“; all they have done, they say, is to operate facilities in the CAWS through which invasive species already living in local rivers might travel on their own. We
Similarly, we know of no rule saying that the defendants must emit a “traditional pollutant” in order for federal common law to apply. While it may be true that the introduction of an invasive species of fish into a new ecosystem does not fit the concept of nuisance as neatly as a spill of toxic chemicals into a stream, we do not think the Supreme Court has limited the concept of public nuisance as much as the defendants suggest. A public nuisance is defined as a substantial and unreasonable interference with a right common to the general public, usually affecting the public health, safety, peace, comfort, or convenience. RESTATEMENT (SECOND) TORTS § 821B; DAN B. DOBBS, THE LAW OF TORTS § 467, at 1334 (2000). It would be arbitrary to conclude that this type of action extends to the harm caused by industrial pollution but not to the environmental and economic destruction caused by the introduction of an invasive, non-native organism into a new ecosystem (assuming that the states have correctly forecast the depletion of the Great Lakes fishery and the corresponding damage to the multi-billion-dollar sports fishing industry). Public nuisance traditionally has been understood to cover a tremendous range of subjects:
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, indecent 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 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 subdivisions . . . of a State may invoke the federal common law of nuisance to abate out-of-state pollution.” 131 S. Ct. at 2536. It declined to answer that question because it thought it best to resolve the case on other grounds. But the Court‘s statement cautions us to tread carefully whenever we consider how far to push a theory of federal common law. This concern is less pressing for claims the Court has already recognized, such as those against state or local governmental entities or private parties. See, e.g., Missouri v. Illinois, 200 U.S. 496 (states), Milwaukee I, 406 U.S. 91 (political subdivisions); Tennessee Copper, 206 U.S. 230 (private citizens).
We have not discovered any case in which the Supreme Court has expressly authorized a public nuisance action
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
The possible inconsistencies that would be created by such a rule may be the reason that no court has expressed concern about the appearance of the Tennessee Valley Authority – a federally owned entity that was created by Congress and acts like a private corporation – as a defendant in a public nuisance lawsuit. See American Electric Power, 131 S. Ct. 2527; North Carolina ex rel. Cooper v. TVA, 615 F.3d 291 (4th Cir. 2010); North Carolina ex rel. Cooper v. TVA, 515 F.3d 344 (4th Cir. 2008). In fact, out of all public nuisance decisions we have identified from either the Supreme Court or the Courts of Appeals that involve a federal agency as a defendant, none contains a whisper of discussion about whether the claim runs against the United States. In addition to the cases just mentioned, see Middlesex Cnty. Sewerage Auth. v. National Sea Clammers Ass‘n, 453 U.S. 1, 4 & n.3 (1981) (claims against the Environmental Protection Agency and the Corps); Committee for Consideration of Jones Falls Sewage Sys., 539 F.2d 1006 (claims against the EPA); Massachusetts v. U.S. Veterans Admin., 541 F.2d 119 (1st Cir. 1976) (claims against the Veterans Administration). Whether the plaintiffs’ common-law action can proceed against the Corps is a question that may well require attention as this case proceeds. Given the parties’ cursory exposition of the issue and our ultimate conclusion that preliminary relief is not warranted, we find it unnecessary to say more at this point. (We see this as a question relating to the plaintiffs’ ability to state a claim; it does not implicate the court‘s jurisdiction, and so there is nothing to prevent our declining to reach it.) For now, we will assume that the states’ federal common-law claim may proceed against all of the defendants.
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 . . . . the 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 equitable relief. Robinson v. Sherrod, 631 F.3d 839, 841 (7th Cir. 2011).
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
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 common-law claim. The defendants say this was error. As they see things, it is enough that Congress has passed legislation to stop the carp and that federal and state agencies are hard at work to address the problem. Because the parties disagree about the effect of American Electric Power and the way in which the displacement analysis should proceed, we begin with a few important principles.
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
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 an executive agency. They read American Electric
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 nuisance had not been displaced, despite the fact that Congress had by that time “enacted numerous laws touching interstate waters.” 406 U.S. at 101-07. Laws that touched on the issue at hand were not enough, and thus the common law action could move forward. At the same time, however, the Court foreshadowed that federal legislation “may in time pre-empt the field of federal common law of nuisance.” Id. at 107. Six months after Milwaukee I, Congress passed sweeping amendments to the Federal Water Pollution Control Act
Most recently, American Electric Power held “that the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants.” 131 S. Ct. at 2537. The Court found it important that the Clean Air Act requires the EPA to identify and establish performance standards for all carbon-dioxide emitters; the statute also “provides multiple avenues for enforcement,” which include state agencies (operating under power delegated by EPA), the EPA itself, criminal proceedings against violators, and private enforcement in the event that the EPA or the states fail to regulate emissions. If the EPA has not acted, states and private parties may petition the agency for a rulemaking, after which parties have a right to review in federal court. Id. at 2537-38. The Court concluded with the observation that “[t]he Act itself thus provides a means to seek limits on emissions of carbon dioxide from domestic power plants—the same relief the plaintiffs seek by invoking federal common law. We see no room for a parallel track.” Id. at 2538.
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 Water Resources Development Act of 2007, supra, instructed the Corps to undertake two studies: a short-term examination of how the electric barrier systems might more effectively stop invasive species (this is the Efficacy Study, which so far consists of
Although this legislation demonstrates that Congress is aware of the problem of invasive species generally, and carp in particular, it falls far short of the mark set by the
D
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
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 “[t]he Restatement definition of public nuisance has . . . been used in . . . federal cases involving the federal common law of nuisance . . . and the Restatement principles have served as the backbone of state nuisance law“). The Restatement provides that “A public nuisance is an unreasonable interference with a right common to the general public,” RESTATEMENT (SECOND) OF TORTS § 821B(1), and it goes on to explain that conduct meets this standard when it interferes significantly with the public health, safety, peace, comfort, or convenience, id. § 821B(2)(a). We described above the reasons why the federal common law of public nuisance is available to redress the type of harm that the states have alleged. And all sides agree that if invasive carp were to achieve a sustainable population in the Great Lakes, the environmental and economic impact would qualify as an unreasonable interference with a public right. As the district court noted, the Corps and other agencies have repeatedly and publicly acknowledged the seriousness of the problem. The Corps, for example, has said that invasive carp “have the potential to damage the Great Lakes and confluent large riverine ecosystems,” and that it regards “[t]he prevention of an inter-basin transfer of bighead and silver carp from the Illinois River to Lake Michigan [as] paramount in avoiding
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 will not support an injunction,” relief will be warranted when “the risk of its happening is greater than a reasonable man would incur“).
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 preliminary posture is that the states were not required to prove that they will ultimately win on the merits in order to secure preliminary relief.
“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
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
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 scare them away or simply miss them, and the large number of negative test results make sense given the sensitivity of the technique. In addition, the Corps and other agencies have voted with their feet: they have been using eDNA tests to manage the invasive carp crisis, and they have said that this testing will continue. (This is undoubtedly why the private intervenor-defendants are the primary critics of this methodology.) If the tests are good enough for expert agencies, it is hard to see why we should flatly forbid their consideration. A January 2011 report on eDNA sampling conducted in 2010 showed positive eDNA results in approximately a dozen locations
Our greatest hesitation with respect to the district court‘s findings is over its conclusion that “it is far from certain that Asian carp can survive and reproduce in the Great Lakes.” Given the record that was before Judge Dow, this prediction may have been sound at the time he ruled. The situation has been evolving rapidly since the preliminary injunction hearing, however, and so we think it worth mentioning that the newest publicly available evidence suggests that when and if the time comes, the carp are unlikely to have trouble establishing themselves in the Great Lakes. Before the district court there was testimony reflecting great uncertainty about how easily the carp could live and reproduce in this new habitat. A species typically requires multiple introductions before it takes root in a new ecosystem, and there has been a substantial debate, reflected in the literature, about whether the food supply and other features of the Great Lakes could support the carp. See generally Sandral L. Cooke & Walter R. Hill, Can Filter-Feeding Asian Carp Invade the Laurentian Great Lakes? A Bioenergetic Modelling Exercise, 55 Freshwater Biology 2138
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.
It is that final step that gives us trouble. As the district
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 turn again to § 702 of the APA, which authorizes a suit by “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.”
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 § 702: those suffering a “legal wrong,” and those “adversely affected or aggrieved by agency action within the meaning of a relevant statute.” In their briefs in this court, the states have not pointed to a single statute against which one might judge the Corps‘s behavior. (This is not surprising, given the dearth of pertinent federal legislation that we discussed in connection with displacement.) The Corps submits that this means that the states have no APA claim; the states respond their APA claim is “free-standing.” Neither answer is satisfactory. We know that the states have not alleged that the Corps‘s actions failed to comply with some statutory provision, and so they must instead be asserting that they have suffered a “legal wrong” because of those actions. The only legal wrong that comes to mind, however, is the infliction of a common-law public nuisance. See Lujan, 497 U.S. at 883 (distinguishing between legal wrongs and the failure of an agency to comply with a statutory provision); Tennessee Electric Power Co. v. Tennessee Valley Authority, 306 U.S. 118, 137 (1939) (explaining that “legal wrong” includes tortious invasions and interferences with property and contractual rights). See generally Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 SUFFOLK U. L. REV. 881, 887-890 (1983) (discussing the use of the term “legal wrong” in the APA and explaining that it “could only mean a wrong already cognizable in the courts“). The result is that the states’ APA claim against the Corps sinks or swims (so to speak) with its public nuisance theory. Because they are indistinguishable, we address only the latter from this point on.
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 same evidence will inform both steps of the preliminary injunction analysis in this case. As long as the distinctions we have just mentioned remain clear, there is no harm in analyzing all of the evidence once rather than twice. As a result, the states’ criticism of the district court is largely academic and provides no reason to reverse that court‘s decision.
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
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.
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, we evaluate whether the injunction would advance or impede the public interest. See, e.g., Ferrell v. U.S. Dep‘t of Hous. and Urban Dev., 186 F.3d 805, 811 (7th Cir. 1999). That additional analysis is not necessary in this case, however, because the parties themselves, with the exception of two intervenors, are governmental entities that represent
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 that 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 completed. It is clear, on the other side, that the requested measures would impose substantial costs on the defendants and the public interests they represent, as well as added expenses for commerce, recreation, and tourism. Second, as circumstances currently stand, there is a more fundamental reason that the states’ requested injunction is unlikely to prevent much harm and actually may impose costs. The courts would not be acting alone. As we have explained, there is a powerful array of expert federal and state actors that are engaged in a monumental effort to stop invasive carp from entering the Great Lakes. The last thing we need is an injunction operating at cross-purposes with their efforts or imposing needless transactional costs that divert scarce resources from science to bureaucracy. Furthermore, from an institutional perspective courts are comparatively
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 complicates our job of evaluating the propriety of injunctive relief. Moreover, their request has been phrased at a high level of generality. They have given us the broad strokes of additional steps they would like us to order the defendants to take, but they have not furnished many details about how this relief would be implemented, on what schedule, at what cost, and on whose nickel. From time to time the states urge that the injunctive measures should be “consistent with public health and safety,” but they do not say what precisely that means. This vagueness is unhelpful; it stands as an obstacle to the entry of an injunction that will satisfy
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:
- Closing the Locks. Close and stop operating the locks at
b. Screens over Sluice Gates. Install nine additional screens over sluice gates that are used to control water flow between the CAWS and the lake at the Controlling Works, O‘Brien, and the Wilmette Pumping Station, a third contact point with Lake Michigan;
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
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 was found). This request asks for steps already being taken, and so we will not discuss it further.
a. Closing the Locks. If the locks at the CRCW 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
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 gates will have at most a tiny effect on the odds of invasive carp making it to Lake Michigan.
c. Block Nets in the Rivers. The prospect of placing block nets in the Little Calumet and Grand Calumet Rivers strikes
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 not digest much of it if it were ingested, rotenone enters the bloodstream of a fish through the gills, causing death quickly. Rotenone dumped into a river kills the vast majority of fish living there; when dead, they usually float to the surface. The poison generally is less dangerous to other animals, but it is toxic and its toxicity varies depending on the species. See generally Cornell University, Resource Guide for Organic Insect and Disease Management, Material Fact Sheets - Rotenone, http://web.pppmb.cals .cornell.edu/resourceguide/mfs/11rotenone.php. It is unclear just how the states’ proposal for rotenone use differs from what the Corps is already doing in the CAWS. We know that the states would like poison to be applied near O‘Brien, but there is no
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 raise a side issue here, saying that the district court erred when it denied their request to expedite GLMRIS because it failed to make the findings required by
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/
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.
3
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 relief does not aid our assessment of the expense of the relief that the states want. It should go without saying in these straitened times that the federal and local governments do not have bottomless coffers. Indeed, 19 members of the
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 range from about $70 million per year (from the plaintiffs’ perspective) to $150 million (according to the Corps). The intervening defendant Coalition to Save Our Waterways, which represents various business interests, tells us that closing the locks would cost $4.7 billion. We find no support in the record for that astronomical estimate. The dollar value of the harm to either side is of course difficult to calculate, but we need not settle on a precise number to resolve this appeal.
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,
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
B
1
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 injunction after North Carolina sued the TVA for air pollution based on a state common-law public nuisance theory. The court of appeals concluded that granting “the injunction would encourage courts to use vague public nuisance standards to scuttle the nation‘s carefully created system for accommodating the need for energy production and the need for clear air.” Id. at 296. Though the case involved a more robust regulatory scheme than the one that has been cobbled together for the invasive carp, the court‘s discussion is instructive insofar as it relates to the problems created when courts attempt to stop a
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, however, it does mean that the court should not blind itself to other remedies that are available under the law or to other measures that are actively being pursued to solve the problem. Even if legal displacement like that found in American Electric Power does not exist, the practical effect of agency actions might add up to displace as a matter of fact any role that equity might otherwise play. Efforts of other branches of government might be so complete that additional action ordered by a court would risk undermining agency efforts to abate the nuisance. How much the equitable power of the court has been limited by agency action will be a factual question that turns on the quality and quantity of the agency‘s (or, as here, agencies‘) efforts. This kind of institutional consideration of the court‘s relative ability to craft meaningful relief fits naturally in the balance-of-harms analysis. For if an injunction might hamper agency efforts or can improve upon them only slightly, that is all the more reason to conclude that the equities tilt in favor of the defendant.
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;
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 species. The Corps says that even though this study is not finished, it now operates the barriers at the maximum safe strength. In connection with its Interim III report, the Corps consulted a panel of experts about a number of potential changes to its operation of the CAWS. The report concluded that additional screens should be installed on sluice gates, and the District responded by adding screens to two gates at O‘Brien, which supplemented the two it had installed months earlier at the Controlling Works. In addition, Interim III recommended that the District cease using the sluice gate at Wilmette for diversion, and it hypothesized that the District might be able to create “atoxic zones” in the CAWS that would be so toxic that no fish would ever be able to swim through them. Finally, the Corps in Interim IIIA recommended the construction of an acoustic, air-bubble, and strobe-light curtain (more or less a disco screen), which would be designed to frighten fish back
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 of the CAWS reduces the propagule pressure that would otherwise push carp closer to Lake Michigan. Finally, the Obama Administration has named an “Asian carp czar,” who is charged with leading the administration‘s effort to stop invasive carp. Recently, the administration announced plans to install a high-intensity water cannon that would deter fish by firing huge, underwater blasts of water across Chicago Ship and Sanity Canal.
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
VI
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 its equitable powers is warranted, taking into account the principles we have discussed in this opinion. As things stand now, however, preliminary relief is not appropriate.
The district court‘s judgment is AFFIRMED.