Michigan Citizens for Water Conservation v. Nestlé Waters North America, Inc. Nestlé began as a case about water. In December 2000, Nestlé Waters North America, Inc., a spring water bottling company that produces Ice Mountain brand bottled water, purchased the groundwater rights to an area known as Sanctuary Springs, in Mecosta County, Michigan. Nestlé planned to pump and bottle water from a local aquifer. Mecosta County, Michigan

SOURCE: http://upload.wikimedia.org/wikipedia/commons/thumb/d/d6/Map_of_Michigan_highlighting_Mecosta_County.svg/200px-Map_of_Michigan_highlighting_Mecosta_County.svg.png

SOURCE: http://www.savemiwater.org/photogallery/Photo's%20Individual/mecosta.jpg

Nestlé installed four wells on the Sanctuary Springs property that would allow it to pump spring water from the aquifer. Nestlé applied for and obtained permits from the Michigan Department of Environmental Quality to take up to 400 gallons of water per minute. The aquifer that Nestlé sought to pump water from is directly connected to bodies of surface water including Osprey Lake, Thompson Lake, the Dead Stream, and several wetlands. Seeking to stop the harmful and possibly irreparable impacts that Nestlé’s pumping would have on their properties and on the surrounding environment, R.J and Barbara Doyle – owners of property on the Dead Stream; Jeffery and Shelley Sapp – owners of property on Thompson Lake; and a non-profit organization called Michigan Citizens for Water Conservation (MCWC) brought a legal action in Mecosta County Circuit Court seeking to stop Nestlé from pumping the groundwater. MCWC was formed to protect and conserve water resources in Michigan. Both the Doyles and the Sapps were members of this organization. The Doyles, Sapps and MCWC’s right to challenge Nestlé’s water pumping activities came from a provision in Michigan’s Constitution. In the Constitution, the People of Michigan expressed

the importance of preserving the state’s natural resources by creating a provision to specifically address the protection of the air, water, other natural resources, and the public’s trust in those resources. The provision states that the citizens consider the conservation and development of the state’s natural resources a “paramount public concern” and makes the Legislature responsible for creating laws to protect them. To fulfill the Constitution’s mandate, the Legislature, in 1970, enacted the Michigan Environmental Protection Act (“MEPA”). MEPA says that “any person” has the authority to bring a legal action to protect the state’s natural resources from pollution, impairment or destruction. This was a revolutionary law that served as a model for similar laws in other states and for federal environmental laws. The Trial Court Judge Found that Nestlé’s Pumping Impaired Surrounding Natural Resources Judge Root of the Mecosta County Circuit Court presided over the Nestlé trial. Based on the evidence that both sides presented, he found that Nestlé’s pumping would adversely affect the water resources that the Doles, Sapps and MCWC fought to protect and that it would harm the ecosystems that those resources were a part of. As a result, Judge Root ordered Nestlé to stop pumping water from the Sanctuary Springs aquifer. To understand Judge Root’s decision, it is important to note that the aquifer, Thompson Lake, Osprey Lake, the Dead Stream and the wetlands were all interconnected. When Nestlé pumped water from the aquifer, the water levels in each of water bodies decreased as a result. Experts demonstrated that when the water levels dropped all sorts of things would happen: the water’s temperature would change, the stream’s flow would be reduced and plants would begin to take it over. The use of the water for fishing and recreation would be limited and the areas overall appearances would change as well. SOURCE: http://www.savemiwater.org/MAIN%20PAGES/Photo%20Pages/Photo%20Canoe%20Dead%20Stream.htm The experts also demonstrated that decreasing water levels in the wetlands would limit their important functions. Wetlands purify water, prevent erosion and control floods. They also serve as a habitat for various species of plant and wildlife. Reduced water levels would impair these functions.

The Supreme Court Limited the Right that We, the Citizens of Michigan, Once Had to Challenge Actions that Impair Our Natural Resources After Judge Root found in favor of the Doyles, Sapps and MCWC, Nestlé appealed the trial court’s decision. The case made its way to the Michigan Supreme Court. The only issue that the Supreme Court considered was whether Nestlé’s actions were appropriately challenged in the first place. In legal terms, the court examined whether the plaintiffs had “standing” to bring a claim under MEPA. “Standing” is an initial threshold that a plaintiff, the person or group raising a legal challenge, must satisfy before a court will consider that challenge. Before the Supreme Court, this case was not about whether Nestlé should or should not pump water from the aquifer. It was about whether, if someone believes this action to be harmful, they are able do something about it. If the plaintiffs have “standing,” then they have access to the courts to challenge the action that they believe is harmful. If the plaintiffs do not have standing, then they cannot legally challenge that action. With its decision, the Supreme Court’s majority changed the Michigan Environmental Protection Act at its core. It changed the way that thirty years of case law interpreted the Act and took away the right of a citizen to protect the state’s natural resources. While the Court decided that the Doyles and Sapps had standing with respect to the Dead Stream and Thompson Lake, it held that they did not have standing with respect to Osprey Lake or the wetlands. In effect, the Court said that because the Doyles and Sapps owned land that touches the Dead Stream and Thompson Lake, they have the right to protect them. Because they did not own land touching Osprey Lake or the wetlands, they have no right to protect them. Now remember what Judge Root found based on the trial evidence: when Nestlé pumps water from the ground, the water levels in all of the resources drop. This means that giving the Sapps and the Doyles the right to protect only some of these resources does not make any practical sense. Take a look at this cross section of an area in which water pumps have been installed. The diagram demonstrates the interconnectedness of all resources in the pictured area. Underground, the streams, rivers and lakes are all connected – pumping water at a single location affects all of these resources. SOURCE: Muskegon Chronicle, Groundwater pumping -- when is it too much? Jan 7, 2007

The diagrams below demonstrate the effect of pumping:

SOURCE: David P. Lusch, Ph.D., Groundwater in Michigan. Available at http://www.rsgis.msu.edu/datadocs.htm.

Under natural conditions, water flows to the lakes and streams. When a high capacity pumping well is installed and operated, water that would otherwise go into the lake instead is pumped from the well. Since less water goes into the lake, the level of the lake becomes lower. If water levels drop in Osprey Lake and the wetlands, areas that they do not have standing to protect, the effect is that water levels in the Dead Stream and in Thompson Lake will also drop and all of the adverse consequences that come along with the drop will follow. The Court’s decision ignores the complex hydrological interconnection between all of the resources and as a result leaves the Doyles, the Sapps, and the resources they want to protect, without any real relief from the effects of Nestlé’s pumping. The Supreme Court Took Away From Michigan Citizens a Right Guaranteed By Our Constitution The Michigan Environmental Protection Act’s purpose was to give the citizens of the state the power to protect their environment. Lawmakers responsible for this statute recognized the interconnectedness of our natural resources. By their very nature the air and water do not just stay in one place. Rather, the particles that they are made up of are in constant motion. Even if we do not own property near a chemical plant, its emissions can still travel to where we do live. Even if we do not own property on a river where a manufacturer releases toxins, those toxins can still make their way into our water supply, the air we breathe, or the food we eat. Often, the harms that result are not apparent until some lengthy time after the polluting act takes place. This is why MEPA gave all citizens the right to protect the natural resources from future harm. For 30 years, there was no question that MEPA empowered private citizens to enforce the environmental laws and to protect the natural resources of this State. The Michigan Supreme Court itself previously considered MEPA “significant legislation which gives the private citizen a sizable share of the initiative for environmental enforcement.” Eyde v. State of Michigan and the Charter Township of Delta, 393 Mich 453, 454 (1975). Sadly, the present majority of the

present court, Justices Taylor, Markman, Young and Corrigan, have essentially struck down MEPA’s citizen suit provision.

The End Result: Our Right as Citizens to Protect the Natural Resources of Our State Has Been Critically Impaired. Nestlé began as a case about water. It turned out to be a case about our right, as citizens, to protect our natural resources - a right that the majority of the present Supreme Court has effectively taken away.