Environmental Law — Asian carp

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U.S. Court of Appeals for the 7th Circuit

Civil

Environmental Law — Asian carp

States can’t sue the Army Corps of Engineers to adopt a specific plan to prevent Asian carp from infiltrating the Great Lakes.

“An injunction requiring the Corps to exercise its discretion in favor of a certain plan and essentially to lobby Congress to adopt and provide funds for that plan, would be an extraordinary and likely inappropriate use of a federal court’s equitable powers. Drafting and enforcing such an in-junction would be impracticable. See RESTATEMENT (SECOND) OF TORTS § 943 cmt. A; see also FED. R. CIV. P. 65 (d)(1)(C). It also realistically might not provide any relief to the States, because its effectiveness would depend entirely on the independent workings of another branch of the federal government.”

“To the extent the States believe that the Corps has failed to live up to its statutory duties, they may have other remedies. They have argued that the Corps should have used the Report to make recommendations as to which measures Congress should adopt to combat the Asian carp, rather than offering only alternative measures for stopping the carp’s progress. While they do not amplify on why they think that the statute requires this, such an allegation (if properly pleaded) could form the basis of a claim for judicial review of administrative action under 5 U.S.C. § 702 (particularly now that the March 3, 2014, comment deadline for the Report has passed and the Report has become a ‘final agency action’ for the purposes of review, see 5 U.S.C. § 704). Alternatively, if the Corps stalls on progress toward a solution to the threat of the Asian carp reaching the Great Lakes, there could come a time when the States might be able to state a claim for review of agency action ‘unlawfully withheld or unreasonably delayed’ within the meaning of 5 U.S.C. § 706(1). We express no opinion as to the merits of these potential claims, which are not before us.”

Affirmed.

12-3800 State of Michigan v. United States Army Corps of Engineers

Appeal from the United States District Court for the Northern District of Illinois, Tharp, J., Wood, J.