By Blake Erickson*
One of Michigan’s most valuable resources is tremendous amount of freshwater. Of course, with this great resource comes the great responsibility of ensuring its protection. Recently, Nestle has taken hundreds of millions of gallons of Michigan groundwater for small clerical fees, generally only $200 per well[i]. The fact that Nestle so little for such a valuable resource has caused environmental groups and citizens alike to try to find a solution in the courts[ii].
There have been many lawsuits both in Michigan and across the country against companies like Nestle, the state governments, and Nestle itself to try and rectify this issue[iii]. While there have been a multitude of legal strategies attempted, one that has recently come to prominence is the use of the Public Trust Doctrine as a way to get to issue[iv].
In 2001, Michigan Citizens for Water Conservation filed suit against Nestle and attempted to utilize the common law public trust doctrine to argue that the government should not be able to sell off the groundwater of a natural spring in Mecosta County[v]. The group made several arguments including that the water was subject to “riparian rights” and public trust.[vi] The trial court dismissed both claims.[vii] The appellate court looked only at a common law groundwater claim and eventually decided with the defendants on that issue.[viii]
In 2006, the Michigan House of Representatives passed a Public Trust Doctrine law, but the bill failed to make it out of the Senate. Public Trust Doctrine laws allow citizens to sue the state on the basis the state is improperly managing public resources. Recent public comments on Nestle taking more water had more than 80,000 signatures against and fewer than 100 for[ix]. If Michigan had passed the Public Trust Doctrine law then these citizens could sue the state under that statute but since the bill did not pass, this means that all Nestle has to do to get its permits is show that taking the water will not show “adverse impact.”[x] While passing a public trust doctrine law would have upped the bar, I do not believe that it would have prevented Nestle from taking the water that it has.
In 2011, a suit was brought by another environmental organization, the National Wildlife Federation,[xi] over a mining and leasing issue in the Upper Peninsula of Michigan. The Federation attempted to assert a public trust doctrine argument at the trial level but the circuit court dismissed that claim.[xii] The appellate court found that the circuit court had jurisdiction over that issue and declined to address the question of the public trust doctrine in this case. They did, however, comment on it in their opinion. The court stated that they were “not persuaded by plaintiffs’ claim that a decision by the DNR could never be effectively challenged on appeal on the basis of the public trust doctrine…”[xiii] While this may seem to be the court tipping its hat towards its wanting someone to bring that challenge to the court of appeals, there has yet to be a favorable ruling in the Michigan Court of Appeals since the National Wildlife Federation opinion was handed down.
As it stands, Michigan courts have ruled that citizens and environmental groups cannot use the common law public trust doctrine in suits attempting to protect groundwater[xiv] because the public trust, at common law, only applied to navigable waterways.[xv] Public trust doctrine laws were never meant to protect groundwater, and I do not believe they should be a replacement for direct legislation that target the taking of ground water by corporations for profit. The public trust doctrine is a fine defense of the water in the great lakes, but its original purpose was never anything more than protecting navigable waterways.[xvi] In my opinion, the only way that Michigan’s citizens and environmental groups will have a true chance to challenge the government in court in situations such as the ones above is if the legislature passes a law that directly addresses the issue. A law that expands the public trust doctrine and brings it up to speed with modern ties will give citizens their “in” when it comes to challenging the government and protecting the state’s natural resources.
*Blake Erickson is a Junior Editor on MJEAL. They can be reached via email at email@example.com.
[i] Freep.com (2019), https://www.freep.com/story/news/2018/04/02/michigan-oks-nestle-permit-increased-water-withdrawal-bottled-water-plant/479896002/ (last visited Nov 29, 2019).
[ii] Gary Wilson, Can the Public Trust Doctrine protect Michigan’s groundwater? – Great Lakes Now Great Lakes Now (2019),https://www.greatlakesnow.org/2018/05/can-the-public-trust-doctrine-protect-michigans-groundwater/ (last visited Nov 29, 2019).
[iii] Alison Moodie, Nestlé lawsuit claims food and beverage giant is illegally bottling California water the Guardian (2019), https://www.theguardian.com/sustainable-business/2015/oct/13/nestle-california-drought-bottled-water-permit-forest (last visited Dec 2, 2019).
[iv] See supra note 2.
[v] Mich. Citizens for Water Conservation v. Nestle Waters N.Am. Inc., 269 Mich. App. 25 (2005).
[xi] Nat’l Wildlife Fedn v. Dep’t of Natural Res., 2011 Mich. App.
[xv] Douglas Quirke, The Public Trust Doctrine: A Primer 1-2 (University of Oregon School of Law Environmental and Natural Resources Law Center, 2016)