The University of Denver’s Water Law Review has just published my article, “Protecting Freshwater Resources in the Era of Global Water Markets: Lessons Learned from Bottled Water.” The citation is 13 U. Denv. Water L. Rev. 1 (2009), and I’m honored that the article was selected as the lead article of this year’s volume of the Water Law Review.
The article covers a brief history of bottled water, the business of bottled water, and opposition to bottled water, along with a short summary of international trade law and federal food law as applied to the bottled water market. It then provides a detailed analysis of bottled water issues in the courts, legislatures, and politics – providing case studies of the good, the bad, and the ugly results of bottled water controversies. The article concludes with an analysis of two recent strategies for addressing bottled water – expansion of the public trust doctrine and taxing water bottlers, strategies with significant legal and political weaknesses. Here’s an excerpt from the introduction, followed by the conclusion:
Global water markets are now a reality. Whether water should be bought and sold, imported and exported, is a difficult and important question that raises issues ranging from human rights obligations and environmental ethics to economic liberalism and the role of corporations. It is also, for purposes of this article, totally moot. At some point in time in the recent past, most likely during my lifetime but before the turn of the twenty-first century, water went global. We do not yet know how great or terrible the implications of global water markets will be for freshwater resources and the people, communities, and environment they sustain. That is still in our hands and depends largely on how domestic laws manage and protect our freshwater resources in the era of global water markets. ....
Opposition to bottled water pumping is almost always based on two general sets of concerns. The first concern relates to the impact of water extraction to fill the billions of bottles Americans purchase every year. Opponents are concerned that the high capacity water pumping, usually from groundwater that is critically important to relatively small connected springs, will reduce stream flows or otherwise harm the natural ecosystem and riparian interests. While water bottling has almost no impact on the total national freshwater supply, the majority of bottled water comes from groundwater which has a direct hydrologic connection to springs and other vulnerable surface waters. Thus, even relatively small water withdrawals for bottled water can produce significant impacts at the local scale on other water users and the environment. ....
The second concern that underlies bottled water disputes is far less suited to legal relief. Some opponents object to the very nature of the use - that is, taking water from the ground or a river to sell it in a bottle. This concern is more social than environmental; it is based on a view that water is a public good and human right that should not be commoditized and sold for profit. For opponents holding this view, reducing the quantity of the water withdrawal to some level that minimizes impacts on other water users and the environment fails to solve the fundamental problem of water commoditization. These opponents object to the extraction and sale of water for profit under any circumstances. ....
Along with climate change, globalization may be the most significant challenge for state water law in the twenty first century. The pressures on water resources are no longer limited to local users and property owners but now include supply for a global water market. Bottled water is the oldest and most mature water market that transcends state lines. Bottled water disputes have forced state courts and political leaders to reevaluate old doctrines and water management regulations. In most cases, bottled water disputes have led to meaningful and useful legal reforms, especially in the area of groundwater management. However, in some cases bottled water disputes have exposed problematic flaws in state water law and protectionist knee-jerk reactions by state political leaders that would do nothing to better protect water resources. Unsatisfied by modest reforms in the courts and legislatures, bottled water opponents have turned their hopes to the public trust doctrine and taxing water bottlers, strategies with significant legal and political weaknesses. Instead, bottled water opponents and state leaders should take the challenge of bottled water as an opportunity to further reform water management law with an emphasis on resource protection, science-based decision making, and water conservation. These approaches will help protect water resources from the pressures of globalization while respecting property rights and international trade law rules.
