Invasive species litigation targeted

ALBANY — State Attorney General Andrew M. Cuomo wants to make sure New Yorkers' interests are protected in federal litigation involving invasive species in the Great Lakes.

Several American and Canadian shipping companies and associations are challenging a Michigan law requiring all ships to treat their ballast water to rid it of non-native invasive species before dumping it into Great Lakes waters. Ballast water is contained in large tanks and is used to keep oceangoing ships stable during transport.

The appellants, the shipping interests, argue that states cannot regulate ballast water discharges because they are pre-empted by federal law and the commerce clause of the U.S. Constitution. But the states argue otherwise.

"States have the right to set more stringent pollution standards than the feds," said Katherine "Kit" Kennedy, special deputy attorney general for environmental protection. "The issue of invasive species has very negative environmental and economic consequences. New York wants to protect its interests."

In signing the amicus curiae brief, Mr. Cuomo joins attorneys general from Minnesota, Wisconsin, Illinois, Ohio and Pennsylvania. The federal Environmental Protection Agency also is a party. An amicus, or "friend of the court," brief offers a means for interested persons or groups who are not direct parties to a case to offer their concerns for the court's consideration.

"The amici states have an interest in defending their right to regulate pollution from ballast water discharges within their respective jurisdictions," the brief said. The states argue that the National Invasive Species Act, the federal Clean Water Act and federal case law all support their position.

"New York has existing legal authority to regulate ballast water discharges and a strong interest in maintaining such authority," the state's brief said. "It is undisputed that vessel ballast water discharges are the main source of aquatic invasive species introductions to the Great Lakes."

When ships from one part of the world empty their ballast tanks in another area, they often release aquatic species that can sometimes take over their new environment, driving away or killing native animals and plants.

Recent invasions of New York waters have brought in round gobies, which compete for baitfish with native species and feed on lake trout eggs, and zebra mussels, which reproduce prolifically and feed on algae and other small animals that would otherwise be food for native fish larvae and invertebrates. Both are found throughout the Great Lakes and also are linked to avian botulism.

Another invader is viral hemorrhagic septicemia, which causes infected fish to bleed to death. This disease has shown up in fish in all of the Great Lakes as well as inland lakes in New York and other states.

The case, Fenav et al. v. Chester, will be heard by the U.S. Court of Appeals for the Sixth Circuit. Ms. Kennedy said that a date for oral arguments has not been set, nor has the venue. The sixth circuit covers Michigan, Kentucky, Ohio and Tennessee.