COMMENTARY: Two tales of Michigan's troubling water ways

By Gary Maveal

Two contrasting stories in the past week’s news about Michigan’s management of public water resources give us good reason to question the priorities of our state government and ponder reforms.

Flint

The first story told of the Snyder administration’s planned appeal of a federal judge’s order that Michigan deliver bottle water to those Flint residents still unable to obtain it. The case is Concerned Pastors for Social Action v. Khouri, et al, No. 16-CV-10277. (U.S. District Court, E.D. Mich).

The state is challenging U.S. District Judge David Lawson’s order to the U.S. Court of Appeals. It argues that the injunction will impose an “insurmountable” burden and expense upon it. The appellate court may rule any day now on the state’s request to stay the injunction.

Judge Lawson’s lengthy written opinion identified widespread problems with water filters in Flint households and residents’ continuing reliance on bottle water. The ruling acknowledges the significant ongoing water and filter distribution efforts, but also cites evidence of how those efforts have fallen short of providing all of the city’s residents with safe drinking water.

Judge Lawson’s ruling — with links to related documents — are available at www.greatlakeslaw.org, a blog written by Prof. Noah Hall of Wayne Law School.

Judge Lawson also rejected arguments from the City of Flint (the State of Michigan’s co-defendant) that the expense to it would be prohibitive, relying on both the essential need for water and the fact that the defendants have created the crisis of Flint’s lead-tainted supply.

In a separate suit against the state arising out of the contamination of Flint’s water, the Michigan’s Court of Claims ruled last month that if the allegations of mismanagement of the Flint water supply by the state (and the Michigan Department of Environmental Quality) were shown to be true, they would “shock the conscience.”

Nestlé

The second story in last week’s news suggests that the State of Michigan has a radically different, “money-is-no-object” attitude when it comes to sharing public water resources with the Nestlé Corporation.

Nestlé draws water from wells on property it owns (or has rights to) and bottles it for commercial sale. The company is taking advantage of regulations that allow it to draw groundwater for a mere $200 annual fee for each of its wells.

Unlike mortal citizens, i.e., metered rate-paying customers, the State of Michigan does not charge Nestlé for the millions of gallons of water that it draws and bottles.

News reports last week detailed that Nestlé is looking to profit even further from the state’s generosity.

Here’s the background. A citizens group sued Nestlé in 2001 claiming that its drawing of 400 gallons of water per minute from aquifers would harm rivers and streams.

The plaintiffs won in the trial court, but the Michigan Supreme Court ruled that they largely lacked standing to sue under the Michigan Environmental Protection Act. Mich. Citizens for Water Conservation v. Nestle Waters North America, Inc., 479 Mich. 280; 737 N.W.2d 447 (2007).

The lawsuit was settled in 2009 with Nestlé agreeing to decrease the volume of water it was drawing from 400 gallons a minute to 218. Nestlé now seeks permission to ramp its operations back up to 400 gallons a minute.

It appears that officials at the MDEQ have repeatedly approved industry requests for waivers and accommodations. The citizens group is skeptical whether the agency’s approach is vigilantly protecting the state’s water resources. After criticism of the MDEQ recommendation to allow Nestlé to increase its daily water take, the agency has extended the period to comment on Nestlé’s most recent request to March 3, 2017.

Conclusion

The sad irony of the Flint disaster is that the state and its emergency managers for the city — along with the MDEQ — engineered the switch away from the Detroit water supply as a cost-cutting measure. The Flint water cases present state and federal courts grappling with an unprecedented municipal health crisis that is — in the short term — being addressed with bottled water.

Nestlé illustrates the perverse profits which can attend privatization of public resources. We should reconsider our laws to eliminate such incentives from all aspects of access to the State’s water resources.

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Gary Maveal is a professor of law at the University of Detroit Mercy School of Law.