McGuireWoods obtains denial of injunction in asian carp case

December 3, 2010

McGuireWoods recently represented a coalition of Illinois business trade associations in challenging the efforts of other Great Lakes states to obtain an injunction to force the U.S. Army Corps of Engineers to close the Chicago locks as a means to halt the migration of Asian carp into the Great Lakes.

In a 61-page opinion, Judge Robert Dow of the U.S. District Court for the Northern District of Illinois adopted many of the coalition's arguments in finding that the states had failed to support their motion for preliminary injunction. Dow held that the Corps' decision not to close the locks was not arbitrary and capricious. He further held that the states hadn't proved that continued operation of the locks would constitute a public nuisance, because they were statutorily required to operate the locks for navigation and storm water control, and because the states had not shown there was an imminent danger of the Asian carp entering Lake Michigan or even causing much damage if they did. Dow ruled that the states had not shown that the Corps' current efforts, including construction of electric barriers and other measures, were ineffective in preventing further migration.

McGuireWoods represented the Coalition to Save Our Waterways, which included the Chemical Industry Council of Illinois, the state chamber of commerce, the American Waterways Operators, and other trade organizations concerned about the severe economic impact of closing the Chicago waterway to navigation. The coalition intervened as a defendant, joining the Corps, the Metropolitan Water Reclamation District, the city of Chicago, and the Wendella Boat Company.

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