Separating the Wheat from the Chaff: The Federal Courts’ Role in Preventing the Spread of Invasive Species Melissa Powers Assistant Professor of Law Lewis & Clark Law School

Case Study #1: Asian Carp and the Great Lakes

System before canal built

System after canal built. Chicago River runs backwards and connects to Mississippi River. Series of locks allow for ship passage. Also allow for carp passage.

DNA discovered November 2009.

Say hello to my little friend. And say goodbye to other species in the Great Lakes – this guy will eat anything!

They fly, too!

Request for Supreme Court Intervention Wisconsin v. Illinois (1929) – Litigation over Chicago Canal related to water withdrawal – Consent decree resulted – still in operation – Occasionally reopened to address changing circumstances – Cases between states = direct Supreme Court review

Request for Supreme Court Intervention Wisconsin v. Illinois – Dec. 2009: Michigan’s petition to reopen/ seeking complete closure of the canal and ultimately disconnection between Mississippi River and Lake Michigan – Motion for preliminary injunction seeking temporary closure – “The motion of Michigan for preliminary injunction is denied.” (Jan. 19, 2010) – Renewed motion denied March 22, 2010

Request for Supreme Court Intervention Wisconsin v. Illinois – April 26, 2010: “The motion of Michigan to reopen and for a supplemental decree is denied. The alternative motion for leave to file a bill of complaint is denied. “ Next steps: – sue the federal agencies (July 2010)

Case study #2: Round-up Ready Alfalfa

Monsanto v. Geertson Litigation GMOs are considered “plant pests” and thus subject to regulation, unless agency agrees to deregulate the GM plant Deregulation decision: requires review under National Environmental Policy Act (NEPA) – NEPA requires Environmental Impact Statement (EIS) for any major decision affecting the environment – Dept. of Agriculture granted deregulation without completing EIS

Monsanto v. Geertson Litigation District court – Failure to complete EIS = violation – Injunction: Must vacate deregulation decision entirely No deregulation decision until agency completes EIS No planting allowed anywhere after March 2007 until agency completes EIS and makes deregulation Appellate court – affirmed

Monsanto v. Geertson Litigation Supreme Court issues – (No dispute that NEPA violated) – Who has standing to litigate – Did the district court properly enjoin the activities related to Roundup Ready Alfalfa?

Monsanto v. Geertson Litigation Supreme Court – Standing – Farmers not using GMOs had standing to challenge agency’s decision to deregulate, based on: Risk of gene spread/contamination from Roundup Ready Alfalfa Farmers’ need to take action (buying seeds from other countries, taking measures to protect crops) to prevent contamination

Monsanto v. Geertson Litigation Supreme Court – Challenge to district court’s injunctive relief order – What it could have been: No injunctions where threat of irreparable harm is low (i.e., less than 50% probability) No injunctions unless district court conducts evidentiary hearing regarding factual disputes Implications – Low probability but high impact actions escape injunctions – Litigation costs increase and injunctions less likely

Monsanto v. Geertson Litigation Supreme Court – Challenge to district court’s injunctive relief order – Supreme Court’s holding: District court’s order prohibiting agency from taking any action to partially deregulate was overly broad (since agency had not made decision regarding partial deregulation yet) District court erred in issuing nationwide injunction against planting, because vacatur of the deregulation decision already made planting illegal

Monsanto v. Geertson Litigation Implications – Parties injured or threatened by invasive spread of GMOs should have standing to sue decisions exposing them to risks – If a party can show a violation of law, injunctive relief remains available, even if it is a low- probability/high-consequence activity – Roundup Ready Alfalfa: not yet on the market

Case study #3: Pacific Salmon Wild salmon v. hatchery salmon: is there a difference?

Spawning sockeye

Wild v. Hatchery Salmon WILD Eggs /alevin: gravel in streams; 10-50% survive. Young fish (fry) learn to feed, hide, defend territory. Juveniles spend from a few days to 4 years in fresh water. Gills change to adapt to ocean life. Adults 1-4 years in ocean. Adults return to native stream to spawn. HATCHERY Hatchery workers fertilize eggs with hatchery fish sperm % hatch and most alevin survive. Fry eat food pellets and move to water surface to eat. Diseases common. Juveniles are released en masse into water, attracting predators to wild fish. Hatchery fish return along with wild fish. Survival rates are lower. Some straying; interbreeding (but poor reproduction rates). Threaten wild salmon stocks.

Wild v. Hatchery Salmon Endangered Species Act listing – If wild and hatchery salmon interbreed, must the agencies charged with protecting imperiled species protect the hatchery salmon, too? – Early lower court case: Agency’s failure to include hatchery salmon when listing coho salmon population was illegal: “[T]he NMFS listing decision creates the unusual circumstance of two genetically identical coho salmon swimming side-by-side in the same stream, but only one receives ESA protection while the other does not.”

Wild v. Hatchery Salmon Endangered Species Act listing – Court of Appeals Agency does not need to list both steelhead and rainbow trout as a single species simply because they interbreed Agency may consider whether species are “markedly separated” by consequence of physical, physiological, ecological or behavioral factors Reflects understanding of the science and policies underlying many invasive species threats: recognizes the genetic differences matter.

General Observations The Supreme Court is an unlikely venue for getting relief through an action filed originally in that Court However, lower courts seem willing to review the facts and balancing the harms – they understand the risks associated with invasive species and potential harms from GMOs If the lower courts explain their decisions and limit the scope of injunctions to what is necessary, the Supreme Court seems likely to affirm the decisions.