The Chicago Diversion, a canal that diverts water from Lake Michigan to reverse the flow of the Chicago River, is the source of a long-running saga that dates back to the opening of the Diversion in 1925. Although the canal is an engineering marvel, the problem is that it permits Asian carp, an extremely invasive species, to migrate into the Great Lakes. Litigation at the federal level in the 1920s kept the Diversion open, but in late 2009 the State of Michigan filed a suit to reopen these old decisions, naming (among other defendants) the neighboring State of Illinois. Under federal court rules when one state sues another, the only appropriate venue for the case is the U.S. Supreme Court. Michigan asked for an injunction to close Chicago-area locks until the cases are decided. The closing of the locks would prevent further incursions by the Asian carp. In January 2010 the Supreme Court denied this request, which was not surprising; legally it would have been an extraordinary step to close down a major U.S. waterway that’s been open for nearly 90 years, merely on a preliminary injunction. The denial of the injunction, however, doesn’t affect the ultimate outcome of the case. We don’t know when the Supreme Court will decide whether to reopen the old 1925 cases, but briefs are due from each side on February 19 (this week, as I write this). Knowing the Supreme Court’s usual practice, they will probably leave this case to the last minute to decide at the end of their term in late June. Even then, it won’t be a final decision on the Chicago Diversion: it’s merely a procedural decision to see whether the cases can be reopened, not a final judgment on whether the Diversion itself will remain open or must close.
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