1. Battling the Bottle Battling exploitation by trans-national bottling corporations: a field guide for water activists on legal challenges to the bottled water enterprise Susan Lea Smith Willamette University Salem, Oregon USA

2. The Baffling Phenomenon of Bottled Water 2010 US consumption = 34 billion liters 2010 US consumption = 34 billion liters 3.5% increase after 2008-9 decline 3.5% increase after 2008-9 decline USD $1.5+ per ½ liter bottle USD $1.5+ per ½ liter bottle 2010 global consumption = 2010 global consumption = almost 200 billion liters USD $65+ billion global revenues USD $65+ billion global revenues Big 4: Danone, Nestle, Coca-Cola, PepsiCo Big 4: Danone, Nestle, Coca-Cola, PepsiCo 1 year’s expenditures on bottled water = could fund community based water systems for every person in the world 1 year’s expenditures on bottled water = could fund community based water systems for every person in the world

3. Drivers of Bottled Water Use “Developed” countries: “Developed” countries: Middle class lifestyle changes: Middle class lifestyle changes: status-seeking/luxury good, disposable lifestyle, status-seeking/luxury good, disposable lifestyle, time pressures/convenience, fitness fantasy time pressures/convenience, fitness fantasy Reduced confidence in public water supplies (LUC) Reduced confidence in public water supplies (LUC) Disappearing public water fountains (LUC) Disappearing public water fountains (LUC) LUC = law of unanticipated consequences Developing countries: Developing countries: Increasingly affluent and modeling Western lifestyles Increasingly affluent and modeling Western lifestyles Lack of safe drinking water (next slide) Lack of safe drinking water (next slide) Manufactured demand around the globe Manufactured demand around the globe

4. Bottled Water Consumption Lack of access to clean water

5. Addressing the Bottlers’ Case Convenient Convenient Easier than filling a water bottle Easier than filling a water bottle Healthier alternative to bottled soda Healthier alternative to bottled soda Safer than tap water Safer than tap water NOT in countries where vast majority consumed: less stringent regulation NOT in countries where vast majority consumed: less stringent regulation 112 recalls/incidents (1990 – 2008) > 25 million bottles of water. (Pacific Institute) 112 recalls/incidents (1990 – 2008) > 25 million bottles of water. (Pacific Institute)Arsenic Known or suspected human carcinogens such as bromate, benzene, and styrene Fecal coliform, E. coli, non-fecal coliform Potentially fatal gram negative bacteria: burkholderia cepacia and pseudomonas aeruginosa Other: paraffin, kerosene, dimethyldisuphide, tetrahydrofuron, sodium polyphosphate, sodium hydroxide, mold, yeast, algae, sand, chlorine, “filth,” and diluted cleaning solution. Elsewhere: beware the trap being set for the poor – reducing middle class and elite support for public water systems Elsewhere: beware the trap being set for the poor – reducing middle class and elite support for public water systems Taste: acquired, largely indistinguishable, tap water generally preferred Taste: acquired, largely indistinguishable, tap water generally preferred

6. The Case Against Bottled Water: Water Resources Impacts Local water resources impacts/competition with other users Local water resources impacts/competition with other users Natural stress: concentrating consumption/redistributing water Natural stress: concentrating consumption/redistributing water Competitive stress: profits make bottling attractive use Competitive stress: profits make bottling attractive use Unnatural stress: abuses by bottlers fighting for their corporate lives due to declining soda sales Unnatural stress: abuses by bottlers fighting for their corporate lives due to declining soda sales 9-16 liters for ½ liter bottle for plastic and packaging 9-16 liters for ½ liter bottle for plastic and packaging 1.5 liters for ½ liter bottle for water treatment 1.5 liters for ½ liter bottle for water treatment Glaring resource waste in face of global water crisis: Glaring resource waste in face of global water crisis: wholly unsustainable use of water

7. The Case Against Bottled Water: Energy Impacts Plastics and packaging Plastics and packaging 200 billion liters = 200 billion liters = 180+ million barrels of oil equivalent = fuel for 1 million + vehicles Doesn’t count: transportation for distribution and disposal, recycling, cooling Doesn’t count: transportation for distribution and disposal, recycling, cooling Energy embedded in a bottle of water amounts to filling the bottle with ¼ oil Energy embedded in a bottle of water amounts to filling the bottle with ¼ oil

8. The Case Against Bottled Water: Greenhouse Gases US consumption: 3+ million tons/yr of CO2e Global consumption: 19+ million tons/yr of CO 2 e = 1 500 mW coal fired power plant

9. The Case Against Bottled Water: Solid Waste Mostly landfilled or incinerated: Mostly landfilled or incinerated: recycling rate estimates range from 10 – 25% “Recycling” often involves transporting waste overseas with uncertain results “Recycling” often involves transporting waste overseas with uncertain results

10. Industry Efforts at Sustainability Promoting Recycling – recycling eliminates 70% of the energy used to make plastic bottles Promoting Recycling – recycling eliminates 70% of the energy used to make plastic bottles Reducing Plastic per Bottle Reducing Plastic per Bottle Finding Green Plastic Substitutes (bioplastics) Finding Green Plastic Substitutes (bioplastics) Using Local Water Sources Using Local Water Sources to Reduce Transportation Costs

11. The Bottom Line: High Cost Signals Highly Inefficient Use of Resources Less than a penny of water, about a dime of profit: almost $1.40 of every $1.50 is pure waste Value Waste

12. Community Battles Against Bottled Water Primary focus is community organizing Primary focus is community organizing Attitudinal change is key to reducing demand Attitudinal change is key to reducing demand Inadequacy of existing law, legal remedies, legal representation – especially in South America (and North America) Inadequacy of existing law, legal remedies, legal representation – especially in South America (and North America) Historical behavior in South America has made TNCs a prime target (prior battles over privitization of water service utilities and other resource battles) Historical behavior in South America has made TNCs a prime target (prior battles over privitization of water service utilities and other resource battles)

13. Legal Strategies to Protect Community Water Resources Water Resources Laws – US (FOCUS FOR TODAY) Water Resources Laws – US (FOCUS FOR TODAY) National v. state law implemented by state National v. state law implemented by state Riparian v. prior appropriative systems Riparian v. prior appropriative systems Statutory and regulatory overlays on common law/customary systems Statutory and regulatory overlays on common law/customary systems Division between groundwater and surface water regulation Division between groundwater and surface water regulation Other Laws Other Laws Land use laws – state law generally implemented locally Land use laws – state law generally implemented locally Little NEPA laws – state law Little NEPA laws – state law Wetlands – federal Clean Water Act 404 and state law Wetlands – federal Clean Water Act 404 and state law

14. Legal Strategies for Groundwater Most bottlers rely on groundwater or springs Most bottlers rely on groundwater or springs Basic rule: Basic rule: rule of capture (Sipriano) rule of capture (Sipriano) reasonable use reasonable use balancing of uses (Michigan Citizens for Water Conservation) balancing of uses (Michigan Citizens for Water Conservation) Public Trust – Nottingham, Michigan Citizens for Water Conservation Public Trust – Nottingham, Michigan Citizens for Water Conservation Inter-basin Transfer Prohibitions – Centamore. Griswold Inter-basin Transfer Prohibitions – Centamore. Griswold Public Interest Permitting – Marion County Public Interest Permitting – Marion County

15. Legal Strategies Protecting Surface Water Resources: Riparian Systems Basic Rule Basic Rule Reasonable Use (prohibits off-tract use) Reasonable Use (prohibits off-tract use) Restatement Rule – Balancing of Use Restatement Rule – Balancing of Use Public Trust Public Trust Statutory Priorities – Klein’s “Preferred Uses” Statutory Priorities – Klein’s “Preferred Uses” Inter-basin Transfer Prohibitions Inter-basin Transfer Prohibitions Public Interest Permitting Public Interest Permitting

16. Legal Strategies Protecting Surface Water Resources: Prior Appropriative Jurisdictions Battling Nestle in Oregon* Beneficial Use/Waste* Beneficial Use/Waste* Statutory Priorities – Municipal (bottling tap water) Statutory Priorities – Municipal (bottling tap water) Transfer: More Consumptive Use * Transfer: More Consumptive Use * (in Oregon only applicable in agricultural transfers) Transfer: Injury to Junior Appropriators Transfer: Injury to Junior Appropriators Public Trust* Public Trust* Inter-Basin Transfer Prohibitions* Inter-Basin Transfer Prohibitions* Public Interest Permitting* Public Interest Permitting*

17. Sipriano v. Great Spring Waters of America, Inc. (Texas) Applying the rule of capture, the Texas Supreme Court refused to enjoin water bottler, even though pumping 90,000 gallons of groundwater per day, seven days a week from land near the plaintiff’s land “severely depleted [plaintiff’s wells].” 1 SW3rd 75 (Tex. 1999)

18. Appeal of the Town of Nottingham (New Hampshire) USA Springs proposed withdrawal up to 439,200 gallons of water per day from a spring and three bedrock wells Statute and regulations provide sole criteria for large groundwater extraction permits Statute and regulations provide sole criteria for large groundwater extraction permits No public trust responsibility imposed by statute or common law No public trust responsibility imposed by statute or common law Regulations require “a description of need to demonstrate the efficient use of, and need for, the proposed withdrawal” - satisfied by showing of strong demand for bottled water. “Need” does not include the concepts of sustainability and public interest. Regulations require “a description of need to demonstrate the efficient use of, and need for, the proposed withdrawal” - satisfied by showing of strong demand for bottled water. “Need” does not include the concepts of sustainability and public interest. USA Springs went into bankruptcy after decade long battle to obtain permits, but emerged from reorganization after concrete sales contracts obtained. 904 A.2d 582 (N.H. 2006) USA Springs went into bankruptcy after decade long battle to obtain permits, but emerged from reorganization after concrete sales contracts obtained. 904 A.2d 582 (N.H. 2006)

19. Michigan Citizens for Water Conservation v. Nestlé Waters North America Inc. (Michigan) Nestle proposed to withdraw 576,000 gallons per day The trial court, applying the English reasonable use rule of groundwater, found that Nestle’s withdrawal for off-tract use had harmed and will continue to harm plaintiffs' riparian interests. The Michigan court of appeals, applying a balancing of uses rule, found Nestle’s withdrawal to be “unreasonable” under the circumstances. On remand, trial court reduced to 313,000 gallons per day 165 709 N.W.2d 174, 185 (Mich. App. 2006), rev’d in part on other grounds, 737 N.W.2d 447 (Mich. 2007) (holding that plaintiffs lacked standing to pursue MEPA claim).

20. Griswold v. Town of Denmark (Maine) Nestle established that its groundwater extraction would not adversely affect the town’s water supply or the sustainability of the aquifer. Opinion does not discuss. Nestle established that its groundwater extraction would not adversely affect the town’s water supply or the sustainability of the aquifer. Opinion does not discuss. Nestle was also required to establish that “water is not available naturally in the location to which it will be transported.” (???) Opinion does not discuss. Nestle was also required to establish that “water is not available naturally in the location to which it will be transported.” (???) Opinion does not discuss. Nestle established a substantial hardship to the potential recipient of the water because evidence of financial harm in a competitive market can constitute substantial hardship as a matter of law. 927 A.2d 410 (Me. 2007). Compare with Centramore v. Dept of Human Services, 664 A.2d 369 (Me. 1995) Nestle established a substantial hardship to the potential recipient of the water because evidence of financial harm in a competitive market can constitute substantial hardship as a matter of law. 927 A.2d 410 (Me. 2007). Compare with Centramore v. Dept of Human Services, 664 A.2d 369 (Me. 1995)

21. Marion County v. Greene (Florida) Consumptive use permit can only be issued if the proposed use of water is a reasonable beneficial use. Reasonable beneficial use is: “[t]he use of water in such quantity as is necessary for economic and efficient utilization for a purpose and in a manner which is both reasonable and consistent with the public interest.” Consumptive use permit can only be issued if the proposed use of water is a reasonable beneficial use. Reasonable beneficial use is: “[t]he use of water in such quantity as is necessary for economic and efficient utilization for a purpose and in a manner which is both reasonable and consistent with the public interest.” Public interest requires consideration of a three prong test: whether the use of water is efficient, whether there is a need for the water requested, and whether the use is for a legitimate purpose. Public interest requires consideration of a three prong test: whether the use of water is efficient, whether there is a need for the water requested, and whether the use is for a legitimate purpose. Without detailing the evidence, the district court of appeals summarily concluded that the evidence was sufficient. Without detailing the evidence, the district court of appeals summarily concluded that the evidence was sufficient. Granting CUP did not violate district’s duty to manage water resources to ensure sustainable use. 5 So.3 rd 775 (Fla. Dist. Ct. App. 2009) Granting CUP did not violate district’s duty to manage water resources to ensure sustainable use. 5 So.3 rd 775 (Fla. Dist. Ct. App. 2009)

22. Legal/Political Strategies to Reduce Demand and Promote Tap Water Federal financing of water infrastructure Federal financing of water infrastructure Stringent federal regulation of public drinking water supplies – even though LUC governs Stringent federal regulation of public drinking water supplies – even though LUC governs Ban the bottle campaigns: Ban the bottle campaigns: eliminate government, corporate, and educational purchasing/vending machine sales of bottled water Ban all bottled water sales: solve dormant commerce clause issue w/ market participant exception or meet strict scrutiny. Ban all bottled water sales: solve dormant commerce clause issue w/ market participant exception or meet strict scrutiny. Impose higher deposit fees on all plastic bottles Impose higher deposit fees on all plastic bottles Tiered rates that penalize highly consumptive municipal users Tiered rates that penalize highly consumptive municipal users

23. Conclusions Existing law does not effectively prevent the waste of water in bottling – because of loopholes, lax administration, legal remedies, and availability of litigation resources Existing law does not effectively prevent the waste of water in bottling – because of loopholes, lax administration, legal remedies, and availability of litigation resources Legal battles can even force small companies into bankruptcy, but so long as demand is strong, they arise like the phoenix. (USA Springs) Legal battles can even force small companies into bankruptcy, but so long as demand is strong, they arise like the phoenix. (USA Springs) Well-targeted legislation can protect water resources by avoiding questions of injunctive relief and proof – but the bottled water industry thus far has won the legislative battle Well-targeted legislation can protect water resources by avoiding questions of injunctive relief and proof – but the bottled water industry thus far has won the legislative battle Ultimately community activists have found the only sound battlefield strategy: WHAM (winning hearts and minds) Ultimately community activists have found the only sound battlefield strategy: WHAM (winning hearts and minds)