Fish and Federalism: How the Asian Carp Litigation Highlights a Deficiency in the Federal Common Law Displacement Analysis

In response to the growing threat posed by the progress of Asian carp up the Mississippi River toward the Great Lakes, and with increased frustration with the federal response to the imminent problem, in 2010, five Great Lakes states sued the Army Corps of Engineers and the Metropolitan Water Reclamation District of Greater Chicago to force a more desirable and potentially more effective strategy to prevent the Asian carp from infiltrating the Great Lakes: closing the Chicago locks. This Note examines the federal common law displacement analysis through the lens of the Asian carp litigation. Both the Federal District Court for the Northern District of Illinois and the United States Court of Appeals for the Seventh Circuit denied the plaintiff States’ request for a preliminary injunction, but allowed the plaintiffs to proceed with their federal common law claim against the Army Corps of Engineers. While both the district court and court of appeals correctly determined that the plaintiff States’ federal common law nuisance claim was not displaced by congressional action and could thus continue to the merits stage, both courts failed to recognize the important and fundamental federalist function, i.e., exercising their sovereign function, that the states were performing in bringing their suit.