“Great Lakes for Sale: From Whitecaps to Bottlecaps” is the provocative title of a new book by environmental activist and author Dave Dempsey. I’ve worked with Dave on several issues over the years and enjoyed his previous books, especially “Ruin and Recovery: Michigan’s Rise as a Conservation Leader,” the definitive Michigan environmental history reference. I was a bit skeptical of his latest book, perhaps doubting that its thin spine (it has less than a hundred pages of text) could substantiate the frightening claim of the title.
However, I was pleasantly surprised by Dempsey’s engaging and conversational memoirs of his work over two decades to protect Great Lakes water. The book begins with his efforts as a young environmental policy advisor for Michigan Governor Jim Blanchard to craft the 1985 Great Lakes Charter – a non-binding handshake agreement that help set the foundation for the Great Lakes compact twenty years later. Dempsey describes his personal frustrations and disappointments with a political process that rarely gives our freshwater the priority it deserves. The book details his experience in other water protection battles, including the Pleasant Prairie Lake Michigan diversion in the late 1980’s, legal fights over bottled water plants, and recent legislative debates regarding the Great Lakes compact. While the stories of these battles lack the thorough detail and objectivity of Peter Annin’s Great Lakes Water Wars book, Dempsey offers the perspective of a policy insider learning tough lessons along the way.
But what about the book’s title – are the Great Lakes really for sale? Here is Dempsey’s argument: Water is becoming more scarce and valuable globally, and increasingly water is being sold and exported to meet regional needs. The free trade agreements, specifically the General Agreement on Tariffs and Trade (GATT) and the North American Free Trade Agreement (NAFTA) prohibit most restrictions on the export of products and goods to other countries, subject to limited environmental exceptions. As the Great Lakes basin contains 18% of the world’s available fresh surface water, it could be viewed as a potential supply for meeting global demand. If freshwater becomes a product or good under the free trade agreements, it will be very difficult for the US, Canada, and individual states and provinces to restrict the sale and export of Great Lakes water. Allowing companies like Nestlé to bottle, sell, and export Great Lakes basin water turns water into a product or good. He concludes that water policies and laws (including the Great Lakes compact) that allow water bottling and other commercial exports of water “products” further the threat of commoditization and loss of control over freshwater resources.
I completely agree with most (but not all) of Dempsey’s argument, but there are some fundamental problems with his conclusion. Undoubtedly water is becoming more valuable globally and bulk water sales and exports have been used to meet regional demands in parts of Europe, the Mediterranean, and the Middle East. GATT and NAFTA have opened up international commerce and trade by prohibiting most export restrictions (with some limited environmental exceptions). Bottled water is now a multi-billion dollar global industry, and the Great Lakes basin is one of the hundreds of sources for bottled water production. Water, even “natural” water without purification or any additives, is already coded as a product for tariff purposes by the GATT parties. There is certainly reason to be concerned, or at least ask what all of this means for protecting Great Lakes water.
Dempsey’s conclusion seems to be that Great Lakes water laws and policies – most notably the Great Lakes compact – should somehow prevent all of this from happening. He faults the Great Lakes compact, as well as other recent water management statutes in Michigan and elsewhere, for not putting a stop to bottled water exports. He claims that allowing exports of bottled water and other water products is a poison pill that could negate all of the protections offered by the Great Lakes compact and other legal reforms. Instead, he would reaffirm the public trust doctrine to protect freshwater resources.
There at least three fundamental problems with Dempsey’s conclusion. First, to some extent water is already a product under the trade agreements and sold for export globally. We may not like it, but it’s happening. Second, if the Great Lakes compact or any other domestic law tried to prohibit the export of bottled water (already a “product” in which trade can not be restricted), the prohibition would almost certainly violate the trade agreements and be repealed. Third, reaffirming the public trust doctrine, while worthwhile for other reasons, may not do anything to prevent bottled water exports. The public trust doctrine is a domestic common law principle and does not trump the free trade agreements, nor has any court ever held that bottling, selling, or exporting water violates the public trust doctrine.
So how can we prevent the Great Lakes from going up for sale? One answer is to reform the free trade agreements. Congressman Bart Stupak notes in his foreword to “Great Lakes for Sale” that he “spoke about this in the congressional debates on NAFTA in 1993, but few people were listening.” With growing concern over the sale and export of water resources, perhaps our political leaders are ready to start listening to proposals to reform the free trade agreements.
If the free trade agreements are here to stay in their current form, then we need to craft laws and policies that protect our water without being protectionist. This means focusing on the environmental impacts of all water withdrawals, not simply targeting water exports. As Dempsey noted in his book, I believe that we are doing just that with the Great Lakes compact. The Great Lakes compact prohibits bulk diversions because of their potential for massive losses of Great Lakes water and resulting environmental harms. It also establishes conservation standards for all other water withdrawals, including those for bottled water. It’s the best approach for protecting freshwater resources under the free trade agreements. Dempsey remains skeptical about the Great Lakes compact, perhaps because of his years of experience seeing government fail to keep its environmental promises. That’s fair but also unfortunate, especially if it leads to unjustified pessimism. Neither of us wants to see the Great Lakes for sale, and I’m glad that Dempsey is willing to ask the tough questions to make sure that we’re doing the job right.